Friday, January 31, 2014

Class 8: Literary Works

Introduction

Section 102 of the Copyright Act provides that copyright can only protect "original works of authorship." 17 U.S.C. § 102(a). In Class 3, Class 4, Class 5, and Class 6, we discussed the meaning of the term "originality." We learned that the originality requirement limits copyright protection to works that are independently created by an author and have some creative element, and that copyright cannot protect facts or ideas.

In the next several classes we will discuss the meaning of the term "works of authorship." We will learn about the different categories of works protected by copyright, and how copyright protects different categories of works in different ways. We will also consider how copyright protects works that include both useful and expressive elements.

Works of Authorship

Section 102 of the Copyright Act identifies eight categories of works of authorship:
Works of authorship include the following categories:
(1) literary works;
(2) musical works, including any accompanying words;
(3) dramatic works, including any accompanying music;
(4) pantomimes and choreographic works;
(5) pictorial, graphic, and sculptural works;
(6) motion pictures and other audiovisual works;
(7) sound recordings; and
(8) architectural works.
17 U.S.C. § 102(a).

In Class 7, we learned that copyright protects intangible works of authorship, not the material objects in which they are fixed. Accordingly, a work of authorship may be fixed in many different forms of media. For example, a novel may be fixed in a paperback book, an ebook, or a sound recording. Likewise, a musical work may be fixed in sheet music or in a sound recording. A choreographic work may be fixed in choreographic notation or in a motion picture. In any case, the medium in which a work is fixed does not affect the nature of the work itself.

Also, the different elements of a work of authorship may fit into different categories, and a single element may fit into more than one category. So, for example, the melody of a song is musical work, but the lyrics of a song are both a musical work and a literary work.

The category of an element of a work is important, because it may affect the particular rights granted to the owner of the work. For example, the owner of a literary work has a performance right, but the owner of a sound recording does not. 17 U.S.C. § 114(a).

Literary Works

Under Section 101 of the Copyright Act:
“Literary works” are works, other than audiovisual works, expressed in words, numbers, or other verbal or numerical symbols or indicia, regardless of the nature of the material objects, such as books, periodicals, manuscripts, phonorecords, film, tapes, disks, or cards, in which they are embodied.
17 U.S.C. § 101.

So, a literary work is a work that consists of words or symbols of any kind, regardless of the medium in which they are expressed. "Literary" just means that the work consists of words or symbols, and does not imply any aesthetic judgment. William Faulker's novel As I Lay Dying is a literary work, but so is Rosey Grier's how-to book Needlepoint for Men, my lecture notes, and your grocery list.

However, some forms of literary works may not be protected by copyright.

For example, as we learned in Class 5, a compilation of facts is protected by copyright only if it includes an original element. The white-pages directory at issue in Feist v. Rural was a literary work, because it consisted of words and symbols, but it could not be protected by copyright, because it lacked originality. 499 U.S. 340 (1991).

Similarly, as we learned in Class 6 and Class 8, words, titles, and short phrases cannot be protected by copyright under the merger doctrine, because they are too close to ideas, Kern River Gas Transmission Co. v. Coastal Corporation899 F.2d 1458 (5th Cir. 1990), and include only a de minimis creative element.

Questions:

  1. In about 1962, shortly before he died of rheumatic heart disease, American painter Franz Kline (1910-62) wrote a grocery list. Is it a literary work? Is it protected by copyright? Can it be?
     
    Franz Kline, Grocery List (c. 1962)



    Franz Kline,
    Painting Number 2 (1954)
  2. In the 1960s, conceptual artists proposed that an artwork could consist of set of instructions. In particular, the Fluxus movement, led by the Lithuanian artist George Maciunas, produced many artworks in the form of instructional cards.



    George Brecht,
    Three Aqueous Events (1961)


    Yoko Ono,
    Blood Piece (1960)
  3. Are these literary works? Are they protected by copyright? Can they be? 
  4. In Bleistein v. Donaldson Lithographing Co., 188 U.S. 239 (1903), the Supreme Court stated, "The copy is the personal reaction of an individual upon nature. Personality always contains something unique. It expresses its singularity even in handwriting, and a very modest grade of art has in it something irreducible which is one man's alone. That something he may copyright unless there is a restriction in the words of the act." How does this affect your analysis of Kline's grocery list? The instruction artworks? 
  5. In William Faulkner's novel Requiem for a Nun (1950), one of the characters says the immortal line, "The past is never dead. It's not even past." In Woody Allen's film Midnight in Paris (2011), Gil Pender (Owen Wilson) says, "The past is not dead! Actually, it's not even past. You know who said that? Faulkner. And he was right. And I met him, too. I ran into him at a dinner party." In 2012, the Faulkner estate filed a copyright infringement action against Sony Pictures Classics, the distributor of the film. The district court dismissed the action, based on fair use. Faulkner Literary Rights, LLC v Sony Pictures Classics, Inc., 3:2012cv00100 (N.D. Miss. July 18, 2013). Can copyright protect the quote? Should copyright protect the quote? Does it matter that the quote was inaccurate? Why?
Titles

Arguably, the title of a work is a "writing" that could satisfy the constitutional criteria for copyright. A title is a collection of words or symbols, and at least some titles could be independent works of authorship with a creative element. However, courts have universally held that "one cannot claim copyright in a title." Seee.g.Arthur Retlaw & Assoc. v. Travenol Laboratories582 F. Supp. 1010, 1014 (N.D. Ill. 1984). The Copyright Office agrees, taking the position that copyright cannot protect titles, individual words, or phrases, because they contain only a de minimis original element.

Questions:
  1. Does the Intellectual Property Clause authorize Congress to grant copyright in titles?
  2. In 1968, Charles and Ray Eames made a film titled, A Rough Sketch for a Proposed Film Dealing with the Powers of Ten and the Relative Size of Things in the Universe (1968). Can copyright protect the title of their film?


    Charles & Ray Eames
    A Rough Sketch for a Proposed Film Dealing with
    the Powers of Ten and the Relative Size of Things in the Universe (1968)
  3. The shortest sentence in the King James Bible (1611) is "Jesus wept." If the King James Bible were written today, could copyright protect that sentence?
  4. The poem Lines on the Antiquity of Microbes (early 20th Century), generally attributed to American poet Strickland Gillilan (1869–1954), reads as follows: "Fleas: / Adam / Had 'em." Can copyright protect this poem? What about its title?
  5. Can any other form of intellectual property protect the title of a work?
Literary Characters

A "literary character" is a character described in a literary work. Essentially, it is a fictional character described in words, rather than in images or sounds. Courts have held that the name of a literary character may be protected by trademark or state unfair competition law, but not by copyright. Seee.g.DC Comics, Inc. v. Filmation Associates486 F. Supp. 1273, 1277 (1980). 

But what about the other elements of a literary character, like a character's qualities or behaviors? Some courts have held that copyright can protect the distinctive elements of a literary character. For example, in Nichols v. Universal Pictures Corp.45 F.2d 119, 121 (2d Cir. 1930), Judge Hand stated:
If Twelfth Night were copyrighted, it is quite possible that a second comer might so closely imitate Sir Toby Belch or Malvolio as to infringe, but it would not be enough that for one of his characters he cast a riotous knight who kept wassail to the discomfort of the household, or a vain and foppish steward who became amorous of his mistress. These would be no more than Shakespeare's "ideas" in the play, as little capable of monopoly as Einstein's Doctrine of Relativity, or Darwin's theory of the Origin of Species. It follows that the less developed the characters, the less they can be copyrighted; that is the penalty an author must bear for marking them too indistinctly.
In other words, according to Hand, copyright can protect a literary character only if it is sufficiently developed, and can protect only the distinctive elements of a character. Hand's explanation of the scope of copyright in literary characters is essentially a particular application of the idea/expression dichotomy. A generic character is analogous to an idea, and a fully developed character is analogous to the expression of a idea.

By contrast, in Warner Bros Pictures v. Columbia Broadcasting System216 F. 2d 945 (9th Cir. 1954), the court held that a contract assigning the rights in the Dashiell Hammett novel The Maltese Falcon did not convey a copyright in the novel's protagonist, private detective Sam Spade, because copyright cannot protect characters, among other reasons:
It is conceivable that the character really constitutes the story being told, but if the character is only the chessman in the game of telling the story he is not within the area of the protection afforded by the copyright.
. . .
We conclude that even if the Owners assigned their complete rights in the copyright to the Falcon, such assignment did not prevent the author from using the characters used therein, in other stories. The characters were vehicles for the story told, and the vehicles did not go with the sale of the story.
Id.

In other words, the court held that copyright can protect a character only if the character itself constitutes the story, rather than merely being a vehicle for telling the story. The court observed that authors often write sequels, using the same characters. If a contract conveying the copyright in a literary work also conveyed the copyright in all of its characters, authors could be prevented from writing sequels:
The practice of writers to compose sequels to stories is old, and the copyright statute, though amended several times, has never specifically mentioned the point. It does not appear that it has ever been adjudicated, although it is mentioned in Nichols v. Universal Pictures Corp., 2 Cir., 1930, 45 F.2d 119. If Congress had intended that the sale of the right to publish a copyrighted story would foreclose the author's use of its characters in subsequent works for the life of the copyright, it would seem Congress would have made specific provision therefor. Authors work for the love of their art no more than other professional people work in other lines of work for the love of it. There is the financial motive as well. The characters of an author's imagination and the art of his descriptive talent, like a painter's or like a person with his penmanship, are always limited and always fall into limited patterns. The restriction argued for is unreasonable, and would effect the very opposite of the statute's purpose which is to encourage the production of the arts.
Id.

Few courts have adopted the reasoning of Nichols, and many scholars have criticized it. Some have argued that the case was actually decided by the language of the contract, so the court's holding that copyright cannot protect literary characters per se is dicta.


Dashiell Hammett, The Maltese Falcon (1930)


Humphrey Bogart as Sam Spade in The Maltese Falcon (1941)

Questions:
  1. Should copyright protect the distinctive elements of a literary character? If so, what counts as a distinctive element? What about a character that consists of generic elements, combined in a distinctive way? 
  2. In Nichols, the court found that if copyright protected literary characters, authors could be prevented from writing sequels. Do you agree? If so, is it necessarily a problem? 
  3. What if an author wants to sell the copyright in a character? Should an author be able to sell the exclusive right to use a literary character?
Computer Programs

Until recently, it was unclear whether copyright could protect computer programs as a form of literary work. While the 1976 Act did not explicitly provide that computer programs were a form of literary work, the legislative history stated that the definition of literary works included, "computer databases and computer programs, to the extent that they incorporate authorship in the programmer's expression of original ideas, as distinguished from the ideas themselves." H.R. Rep. No. 94-1476, at 54 (1976).

In 1980, Congress amended the Copyright Act and explicitly provided for copyright protection of computer programs. 94 Stat. 3028. Section 101 of the Copyright Act provides:
A “computer program” is a set of statements or instructions to be used directly or indirectly in a computer in order to bring about a certain result.
17 U.S.C. § 101.  In other words, computer programs are defined as a kind of literary work, consisting of "statements or instructions." However, Section 117 provides that the scope of copyright in computer programs is limited in certain ways, primarily because of the need to make copies of computer programs in order to use them. 17 U.S.C. § 117.

Critics of protecting computer programs as literary works argue that they are useful articles, not works of authorship. Essentially, they argue that the purpose of a computer program is utilitarian, not expressive. They are intended to do work, not to be read. While the result produced by a computer program may be expressive and protected by copyright, the program itself is not. For example, in Class 7, we discussed Stern Electronics Inc. v. Kaufman, 669 F.2d 852 (2d Cir. 1982) and Williams Electronics Inc v. Artic International Inc., 685 F. 2d 870 (3d Cir. 1982), in which courts held that copyright could protect the audiovisual elements of a video game.

Questions:
  1. If copyright can protect the results produced by a computer program, can it protect the underlying program as well? Should it?
  2. What about computer programs that do not produce a result that can be protected by copyright? For example, what about a program that controls a thermostat?
Apple Computer, Inc. v. Franklin Computer Corporation714 F.2d 1240 (3d Cir. 1983)
Sloviter, Circuit Judge. 
I. Introduction 
Apple Computer, Inc. appeals from the district court’s denial of a motion to preliminarily enjoin Franklin Computer Corp. from infringing the copyrights Apple holds on fourteen computer programs.
* * *
In this case the district court denied the preliminary injunction, inter alia, because it had “some doubt as to the copyrightability of the programs.” Apple Computer, Inc. v. Franklin Computer Corp., 545 F. Supp. 812, 215 USPQ 935 (E.D. Pa. 1982). This legal ruling is fundamental to all future proceedings in this action and, as the parties and amici curiae seem to agree, has considerable significance to the computer services industry. Because we conclude that the district court proceeded under an erroneous view of the applicable law, we reverse the denial of the preliminary injunction and remand.
II. Facts and Procedural History 
Apple, one of the computer industry leaders, manufactures and markets personal computers (micro-computers), related peripheral equipment such as disk drives (peripherals), and computer programs (software). It presently manufactures Apple II computers and distributes over 150 programs. Apple has sold over 400,000 Apple II computers, employs approximately 3,000 people, and had annual sales of $335,000,000 for fiscal year 1981. One of the byproducts of Apple’s success is the independent development by third parties of numerous computer programs which are designed to run on the Apple II computer. 
Franklin, the defendant below, manufactures and sells the ACE 100 personal computer and at the time of the hearing employed about 75 people and had sold fewer than 1,000 computers. The ACE 100 was designed to be “Apple compatible,” so that peripheral equipment and software developed for use with the Apple II computer could be used in conjunction with the ACE 100. Franklin’s copying of Apple’s operating system computer programs in an effort to achieve such compatibility precipitated this suit. 
Like all computers both the Apple II and ACE 100 have a central processing unit (CPU) which is the integrated circuit that executes programs. In lay terms, the CPU does the work it is instructed to do. Those instructions are contained on computer programs. 
There are three levels of computer language in which computer programs may be written. 
High level language, such as the commonly used BASIC or FORTRAN, uses English words and symbols, and is relatively easy to learn and understand (e.g., “GO TO 40” tells the computer to skip intervening steps and go to the step at line 40). A somewhat lower level language is assembly language, which consists of alphanumeric labels (e.g., “ADC” means “add with carry”). Statements in high level language, and apparently also statements in assembly language, are referred to as written in “source code.” The third, or lowest level computer language, is machine language, a binary language using two symbols, 0 and 1, to indicate an open or closed switch (e.g., “01101001” means, to the Apple, add two numbers and save the result). Statements in machine language are referred to as written in “object code.”
The CPU can only follow instructions written in object code. However, programs are usually written in source code which is more intelligible to humans. Programs written in source code can be converted or translated by a “compiler” program into object code for use by the computer. Programs are generally distributed only in their object code version stored on a memory device. 
A computer program can be stored or fixed on a variety of memory devices, two of which are of particular relevance for this case. The ROM (Read Only Memory) is an internal permanent memory device consisting of a semi-conductor “chip” which is incorporated into the circuitry of the computer. A program in object code is embedded on a ROM before it is incorporated in the computer. Information stored on a ROM can only be read, not erased or rewritten. The ACE 100 apparently contains EPROMS (Erasable Programmable Read Only Memory) on which the stored information can be erased and the chip reprogrammed, but the district court found that for purposes of this proceeding, the difference between ROMs and EPROMs is inconsequential. 545 F. Supp. at 813 n.3, 215 USPQ 935, 938 n.3. The other device used for storing the programs at issue is a diskette or “floppy disk”, an auxiliary memory device consisting of a flexible magnetic disk resembling a phonograph record, which can be inserted into the computer and from which data or instructions can be read. 
Computer programs can be categorized by function as either application programs or operating system programs. Application programs usually perform a specific task for the computer user, such as word processing, checkbook balancing, or playing a game. In contrast, operating system programs generally manage the internal functions of the computer or facilitate use of application programs. The parties agree that the fourteen computer programs at issue in this suit are operating system programs. 
Apple filed suit in the United States District Court for the Eastern District of Pennsylvania pursuant to 28 U.S.C. §1338 on May 12, 1982, alleging that Franklin was liable for copyright infringement of the fourteen computer programs, patent infringement, unfair competition, and misappropriation. Franklin’s answer in respect to the copyright counts included the affirmative defense that the programs contained no copyrightable subject matter. Franklin counterclaimed for declaratory judgment that the copyright registrations were invalid and unenforceable, and sought affirmative relief on the basis of Apple’s alleged misuse. Franklin also moved to dismiss eleven of the fourteen copyright infringement counts on the ground that Apple failed to comply with the procedural requirements for suit under 17 U.S.C. §§410, 411. 
After expedited discovery, Apple moved for a preliminary injunction to restrain Franklin from using, copying, selling, or infringing Apple’s copyrights. The district court held a three day evidentiary hearing limited to the copyright infringement claims. Apple produced evidence at the hearing in the form of affidavits and testimony that programs sold by Franklin in conjunction with its ACE 100 computer were virtually identical with those covered by the fourteen Apple copyrights. The variations that did exist were minor, consisting merely of such things as deletion of reference to Apple or its copyright notice. James Huston, an Apple systems programmer, concluded that the Franklin programs were “unquestionably copied from Apple and could not have been independently created.” He reached this conclusion not only because it is “almost impossible for so many lines of code” to be identically written, but also because his name, which he had embedded in one program (Master Create), and the word “Applesoft”, which was embedded in another (DOS 3.3), appeared on the Franklin master disk. Apple estimated the “works in suit” took 46 man-months to produce at a cost of over $740,000, not including the time or cost of creating or acquiring earlier versions of the programs or the expense of marketing the programs. 
Franklin did not dispute that it copied the Apple programs. Its witness admitted copying each of the works in suit from the Apple programs. Its factual defense was directed to its contention that it was not feasible for Franklin to write its own operating system programs. David McWherter, now Franklin’s vice-president of engineering, testified he spent 30-40 hours in November 1981 making a study to determine if it was feasible for Franklin to write its own autostart ROM program and concluded it was not because “there were just too many entry points in relationship to the number of instructions in the program.” Entry points at specific locations in the program can be used by programmers to mesh their application programs with the operating system program. McWherter concluded that use of the identical signals was necessary in order to ensure 100% compatibility with application programs created to run on the Apple computer. He admitted that he never attempted to rewrite Autostart ROM and conceded that some of the works in suit (i.e., Copy, Copy A, Master Create, and Hello) probably could have been rewritten by Franklin. Franklin made no attempt to rewrite any of the programs prior to the lawsuit except for Copy, although McWherter testified that Franklin was “in the process of redesigning” some of the Apple programs and that “[w]e had a fair degree of certainty that that would probably work.” Apple introduced evidence that Franklin could have rewritten programs, including the Autostart ROM program, and that there are in existence operating programs written by third parties which are compatible with Apple II. 
Franklin’s principal defense at the preliminary injunction hearing and before us is primarily a legal one, directed to its contention that the Apple operating system programs are not capable of copyright protection. 
The district court denied the motion for preliminary injunction by order and opinion dated July 30, 1982. Apple moved for reconsideration in light of this court’s decision in Williams Electronics, Inc. v. Artic International, Inc., 685 F.2d 870, 215 USPQ 405 (3d Cir. 1982), which was decided August 2, 1982, three days after the district court decision. The district court denied the motion for reconsideration. We have jurisdiction of Apple’s appeal pursuant to 28 U.S.C. §1292(a)(1). 
III. The District Court Opinion
* * * 
We read the district court opinion as presenting the following legal issues: (1) whether copyright can exist in a computer program expressed in object code, (2) whether copyright can exist in a computer program embedded on a ROM, (3) whether copyright can exist in an operating system program, and (4) whether independent irreparable harm must be shown for a preliminary injunction in copyright infringement actions. 
IV. Discussion
A. Copyrightability of a Computer Program Expressed in Object Code 
Certain statements by the district court suggest that programs expressed in object code, as distinguished from source code, may not be the proper subject of copyright. We find no basis in the statute for any such concern. Furthermore, our decision in Williams Electronics, Inc. v. Artic International, Inc.supra, laid to rest many of the doubts expressed by the district court. 
In 1976, after considerable study, Congress enacted a new copyright law to replace that which had governed since 1909. Act of October 19, 1976, Pub. L. No. 94-553, 90 Stat. 2541 (codified at 17 U.S.C. §§101 et seq.). Under the law, two primary requirements must be satisfied in order for a work to constitute copyrightable subject matter – it must be an “original wor[k] of authorship” and must be “fixed in [a] tangible medium of expression.” 17 U.S.C. §102(a). The statute provides: 
(a) Copyright protection subsists, in accordance with this title, in original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device. 
Id. The statute enumerates seven categories under “works of authorship” including “literary works”, defined as follows: 
“Literary works” are works, other than audiovisual works, expressed in words, numbers, or other verbal or numerical symbols or indicia, regardless of the nature of the material objects, such as books, periodicals, manuscripts, phonorecords, film, tapes, disks, or cards, in which they are embodied. 
17 U.S.C. §101. A work is “fixed” in a tangible medium of expression when: 
its embodiment in a copy or phonorecord, by or under the authority of the author, is sufficiently permanent or stable to permit it to be perceived, reproduced, or otherwise communicated for a period of more than transitory duration. A work consisting of sounds, images, or both, that are being transmitted, is “fixed” for purposes of this title if a fixation of the work is being made simultaneously with its transmission. 
Id
Although section 102(a) does not expressly list computer programs as works of authorship, the legislative history suggests that programs were considered copyrightable as literary works. See H.R. Rep. No. 1476, 94th Cong., 2d Sess. 54, reprinted in 1976 U.S. Code Cong. & Ad. News 5659, 5667 (“literary works’ * * * includes * * * computer programs”). Because a Commission on New Technological Uses (“CONTU”) had been created by Congress to study, inter alia, computer uses of copyrighted works, Pub. L. No. 93-573, §201, 88 Stat. 1873 (1974), Congress enacted a status quo provision, section 117, in the 1976 Act concerning such computer uses pending the CONTU report and recommendations. 
The CONTU Final Report recommended that the copyright law be amended, inter alia, “to make it explicit that computer programs, to the extent that they embody an author’s original creation, are proper subject matter of copyright.” National Commission on New Technological Uses of Copyrighted Works, Final Report 1 (1979) [hereinafter CONTU Report]. CONTU recommended two changes relevant here: that section 117, the status quo provision, be repealed and replaced with a section limiting exclusive rights in computer programs so as “to ensure that rightful possessors of copies of computer programs may use or adapt these copies for their use,” id.; and that a definition of computer program be added to section 101. Id. at 12. Congress adopted both changes. Act of Dec. 12, 1980, Pub. L. No. 96-517, §10, 94 Stat. 3015, 3028. The revisions embodied CONTU’s recommendations to clarify the law of copyright of computer software. H.R. Rep. No. 1307, 96th Cong., 2d Sess. 23, reprinted in 1980 U.S. Code Cong. & Ad. News 6460, 6482. 
The 1980 amendments added a definition of a computer program: 
A “computer program” is a set of statements or instructions to be used directly or indirectly in a computer in order to bring about a certain result. 
17 U.S.C. §101. The amendments also substituted a new section 117 which provides that “it is not an infringement for the owner of a copy of a computer program to make or authorize the making of another copy or adaptation of that computer program” when necessary to “the utilization of the computer program” or “for archival purposes only.” 17 U.S.C. §117. The parties agree that this section is not implicated in the instant law suit. The language of the provision, however, by carving out an exception to the normal proscriptions against copying, clearly indicates that programs are copyrightable and are otherwise afforded copyright protection. 
We considered the issue of copyright protection for a computer program in Williams Electronics, Inc. v. Artic International, Inc., and concluded that “the copyrightability of computer programs is firmly established after the 1980 amendment to the Copyright Act.” 685 F.2d at 875, 215 USPQ at 409. At issue in Williams were not only two audiovisual copyrights to the “attract” and “play” modes of a video game, but also the computer program which was expressed in object code embodied in ROM and which controlled the sights and sounds of the game. Defendant there had argued “that when the issue is the copyright on a computer program, a distinction must be drawn between the ‘source code’ version of a computer program, which * * * can be afforded copyright protection, and the ‘object code’ stage, which * * * cannot be so protected,” an argument we rejected. Id. at 876, 215 USPQ at 409. 
The district court here questioned whether copyright was to be limited to works “designed to be ‘read’ by a human reader [as distinguished from] read by an expert with a microscope and patience”, 545 F. Supp. at 821, 215 USPQ at 944. The suggestion that copyrightability depends on a communicative function to individuals stems from the early decision of White-Smith Music Publishing Co. v. Apollo Co., 209 U.S. 1 (1908), which held a piano roll was not a copy of the musical composition because it was not in a form others, except perhaps for a very expert few, could perceive. See 1 Nimmer on Copyright §2.03[B][1] (1983). However, it is clear from the language of the 1976 Act and its legislative history that it was intended to obliterate distinctions engendered by White-Smith. H.R. Rep. No. 1476, supra, at 52, reprinted in 1976 U.S. Code Cong. & Ad. News at 5665. 
Under the statute, copyright extends to works in any tangible means of expression “ from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device.’” 17 U.S.C. §102(a) (emphasis added). Further, the definition of “computer program” adopted by Congress in the 1980 amendments is “sets of statements or instructions to be used directly or indirectly in a computer in order to bring about a certain result.” 17 U.S.C. §101 (emphasis added). As source code instructions must be translated into object code before the computer can act upon them, only instructions expressed in object code can be used “directly” by the computer. See Midway Manufacturing Co. v. Strohon, No. 82 C 1305, slip op. at 25-26, 219 USPQ 42, 50 (N.D. Ill. June 1, 1983). This definition was adopted following the CONTU Report in which the majority clearly took the position that object codes are proper subjects of copyright. See CONTU Report at 21. The majority’s conclusion was reached although confronted by a dissent based upon the theory that the “machine-control phase” of a program is not directed at a human audience. See CONTU Report at 28-30 (dissent of Commissioner Hersey).
The defendant in Williams had also argued that a copyrightable work “must be intelligible to human beings and must be intended as a medium of communication to human beings,” id. at 876-77, 215 USPQ at 409. We reiterate the statement we made in Williams when we rejected that argument: “[t]he answer to defendant’s contention is in the words of the statute itself.” 685 F.2d at 877, 215 USPQ at 410. 
The district court also expressed uncertainty as to whether a computer program in object code could be classified as a “literary work.” However, the category of “literary works”, one of the seven copyrightable categories, is not confined to literature in the nature of Hemingway’s For Whom the Bell Tolls. The definition of “literary works” in section 101 includes expression not only in words but also “numbers, or other * * * numerical symbols or indicia”, thereby expanding the common usage of “literary works.” Cf. Harcourt, Brace & World, Inc. v. Graphic Controls Corp., 329 F. Supp. 517, 523-24, 171 USPQ 219, 223-224 (S.D.N.Y. 1971) (the symbols designating questions or response spaces on exam answer sheets held to be copyrightable “writings” under 1909 Act); Reiss v. National Quotation Bureau, Inc., 276 F. 717 (S.D.N.Y. 1921) (code book of coined words designed for cable use copyrightable). Thus a computer program, whether in object code or source code, is a “literary work” and is protected from unauthorized copying, whether from its object or source code version. Accord Midway Mfg. Co. v. Strohon, slip op. at 25-27, 219 USPQ at 50; see also GCA Corp. v. Chance, 217 USPQ at 719. 
B. Copyrightability of a Computer Program Embedded on a ROM 
Just as the district court’s suggestion of a distinction between source code and object code was rejected by our opinion in Williams issued three days after the district court opinion, so also was its suggestion that embodiment of a computer program on a ROM, as distinguished from in a traditional writing, detracts from its copyrightability. In Williams we rejected the argument that “a computer program is not infringed when the program is loaded into electronic memory devices (ROMs) and used to control the activity of machines.” 685 F.2d at 876, 215 USPQ at 409. Defendant there had argued that there can be no copyright protection for the ROMs because they are utilitarian objects or machine parts. We held that the statutory requirement of “fixation”, the manner in which the issue arises, is satisfied through the embodiment of the expression in the ROM devices. Id. at 874, 876, 215 USPQ at 408; See also Midway Mfg. Co. v. Strohon, slip op. at 27-30, 219 USPQ at 51; Tandy Corp. v. Personal Micro Computers, Inc., 524 F. Supp. at 173, 214 USPQ at 179; cf. Stern Electronics, Inc. v. Kaufman, 669 F.2d 852, 855-56, 213 USPQ 443, 445-446 (2d Cir. 1982) (audiovisual display of video game “fixed” in ROM). 
Therefore we reaffirm that a computer program in object code embedded in a ROM chip is an appropriate subject of copyright. See also Note, Copyright Protection of Computer Program Object Code, 96 Harv. L. Rev. 1723 (1983); Note, Copyright Protection for Computer Programs in Read Only Memory Chips, 11 Hofstra L. Rev. 329 (1982). 
C. Copyrightability of Computer Operating System Programs 
We turn to the heart of Franklin’s position on appeal which is that computer operating system programs, as distinguished from application programs, are not the proper subject of copyright “regardless of the language or medium in which they are fixed.” Brief of Appellee at 15 (emphasis deleted). Apple suggests that this issue too is foreclosed by our Williams decision because some portion of the program at issue there was in effect an operating system program. Franklin is correct that this was not an issue raised by the parties in Williams and it was not considered by the court. Thus we consider it as a matter of first impression. 
Franklin contends that operating system programs are per se excluded from copyright protection under the express terms of section 102(b) of the Copyright Act, and under the precedent and underlying principles of Baker v. Selden, 101 U.S. 99 (1879). These separate grounds have substantial analytic overlap. 
In Baker v. Selden, plaintiff’s testator held a copyright on a book explaining a bookkeeping system which included blank forms with ruled lines and headings designed for use with that system. Plaintiff sued for copyright infringement on the basis of defendant’s publication of a book containing a different arrangement of the columns and different headings, but which used a similar plan so far as results were concerned. The Court, in reversing the decree for the plaintiff, concluded that blank account-books were not the subject of copyright and that “the mere copyright of Selden’s book did not confer upon him the exclusive right to make and use account-books, ruled and arranged as designated by him and described and illustrated in said book.” Id. at 107. The Court stated that copyright of the books did not give the plaintiff the exclusive right to use the system explained in the books, noting, for example, that “copyright of a work on mathematical science cannot give to the author an exclusive right to the methods of operation which he propounds.” Id. at 103. 
Franklin reads Baker v. Selden as “stand[ing] for several fundamental principles, each presenting * * * an insuperable obstacle to the copyrightability of Apple’s operating systems.” It states: 
First, Baker teaches that use of a system itself does not infringe a copyright on the description of the system. Second, Baker enunciates the rule that copyright does not extend to purely utilitarian works. Finally, Baker emphasizes that the copyright laws may not be used to obtain and hold a monopoly over an idea. In so doing, Baker highlights the principal difference between the copyright and patent laws – a difference that is highly pertinent in this case. 
Brief of Appellee at 22. 
Section 102(b) of the Copyright Act, the other ground on which Franklin relies, appeared first in the 1976 version, long after the decision in Baker v. Selden. It provides: 
In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work. 
It is apparent that section 102(b) codifies a substantial part of the holding and dictum of Baker v. SeldenSee 1 Nimmer on Copyright §2.18[D], at 2-207. 
We turn to consider the two principal points of Franklin’s argument. 
1. “Process”, “System” or “Method of Operation” 
Franklin argues that an operating system program is either a “process”, “system”, or “method of operation” and hence uncopyrightable. Franklin correctly notes that underlying section 102(b) and many of the statements for which Baker v. Selden is cited is the distinction which must be made between property subject to the patent law, which protects discoveries, and that subject to copyright law, which protects the writings describing such discoveries. However, Franklin’s argument misapplies that distinction in this case. Apple does not seek to copyright the method which instructs the computer to perform its operating functions but only the instructions themselves. The method would be protected, if at all, by the patent law, an issue as yet unresolved. See Diamond v. Diehr, 450 U.S. 175 (1981). 
Franklin’s attack on operating system programs as “methods” or “processes” seems inconsistent with its concession that application programs are an appropriate subject of copyright. Both types of programs instruct the computer to do something. Therefore, it should make no difference for purposes of section 102(b) whether these instructions tell the computer to help prepare an income tax return (the task of an application program) or to translate a high level language program from source code into its binary language object code form (the task of an operating system program such as “Applesoft”, see note 4 supra). Since it is only the instructions which are protected, a “process” is no more involved because the instructions in an operating system program may be used to activate the operation of the computer than it would be if instructions were written in ordinary English in a manual which described the necessary steps to activate an intricate complicated machine. There is, therefore, no reason to afford any less copyright protection to the instructions in an operating system program than to the instructions in an application program. 
Franklin’s argument, receptively treated by the district court, that an operating system program is part of a machine mistakenly focuses on the physical characteristics of the instructions. But the medium is not the message. We have already considered and rejected aspects of this contention in the discussion of object code and ROM. The mere fact that the operating system program may be etched on a ROM does not make the program either a machine, part of a machine or its equivalent. Furthermore, as one of Franklin’s witnesses testified, an operating system does not have to be permanently in the machine in ROM, but it may be on some other medium, such as a diskette or magnetic tape, where it could be readily transferred into the temporary memory space of the computer. In fact, some of the operating systems at issue were on diskette. As the CONTU majority stated: 
Programs should no more be considered machine parts than videotapes should be considered parts of projectors or phonorecords parts of sound reproduction equipment. * * * That the words of a program are used ultimately in the implementation of a process should in no way affect their copyrightability. 
CONTU Report at 21. 
Franklin also argues that the operating systems cannot be copyrighted because they are “purely utilitarian works” and that Apple is seeking to block the use of the art embodied in its operating systems. This argument stems from the following dictum in Baker v. Selden
The very object of publishing a book on science or the useful arts is to communicate to the world the useful knowledge which it contains. But this object would be frustrated if the knowledge could not be used without incurring the guilt of piracy of the book. And where the art it teaches cannot be used without employing the methods and diagrams used to illustrate the book, or such as are similar to them, such methods and diagrams are to be considered as necessary incidents to the art, and given therewith to the public; not given for the purpose of publication in other works explanatory of the art, but for the purpose of practical application. 
101 U.S. at 103. We cannot accept the expansive reading given to this language by some courts, seee.g.Taylor Instrument Companies v. Fawley-Brost Co., 139 F.2d 989, 59 USPQ 384 (7th Cir. 1943), cert. denied, 321 U.S. 785, 60 USPQ 579 (1944). In this respect we agree with the views expressed by Professor Nimmer in his treatise. See 1 Nimmer on Copyright §2.18[C]. 
Although a literal construction of this language could support Franklin’s reading that precludes copyrightability if the copyright work is put to a utilitarian use, that interpretation has been rejected by a later Supreme Court decision. In Mazer v. Stein, 347 U.S. 201, 218, 100 USPQ 325 (1954), the Court stated: “We find nothing in the copyright statute to support the argument that the intended use or use in industry of an article eligible for copyright bars or invalidates its registration. We do not read such a limitation into the copyright law.” Id. at 218, 100 USPQ at 333. The CONTU majority also rejected the expansive view some courts have given Baker v. Selden, and stated, “That the words of program are used ultimately in the implementation of a process should in no way affect their copyrightability.” Id. at 21. It referred to “copyright practice past and present, which recognizes copyright protection for a work of authorship regardless of the uses to which it may be put.” Id. The Commission continued: “The copyright status of the written rules for a game or a system for the operation of a machine is unaffected by the fact that those rules direct the actions of those who play the game or carry out the process.’” Id. (emphasis added). As we previously noted, we can consider the CONTU Report as accepted by Congress since Congress wrote into the law the majority’s recommendations almost verbatim. See 18 Cong. Rec. H10767 (daily ed. Nov. 17, 1980) (Rep. Kastenmeier: Bill “eliminates confusion about the legal status of computer software by enacting the recommendations of [CONTU] clarifying the law of copyright of computer software”); 18 Cong. Rec. S14766 (daily ed. Nov. 20, 1980) (Sen. Bayh: “[t]his language reflects that proposed by [CONTU”]). 
Perhaps the most convincing item leading us to reject Franklin’s argument is that the statutory definition of a computer program as a set of instructions to be used in a computer in order to bring about a certain result, 17 U.S.C. §101, makes no distinction between application programs and operating programs. Franklin can point to no decision which adopts the distinction it seeks to make. In the one other reported case to have considered it, Apple Computer, Inc. v. Formula International, Inc., 562 F. Supp. 775, 218 USPQ 47 (C.D. Cal. 1983), the court reached the same conclusion which we do, i.e. that an operating system program is not per se precluded from copyright. It stated, “There is nothing in any of the statutory terms which suggest a different result for different types of computer programs based upon the function they serve within the machine.” Id. at 780, 218 at 51. Other courts have also upheld the copyrightability of operating programs without discussion of this issue. See Tandy Corp. v. Personal Micro Computers, Inc., 524 F. Supp. at 173, 214 USPQ at 179 (input-output routine stored in ROM which translated input into machine language in a similar fashion as Applesoft and Apple Integer Basic proper subject of copyright); GCA Corp. v. Chance, 217 USPQ at 719 (object code version of registered source code version of operating programs is the same work and protected). 
2. Idea/Expression Dichotomy 
Franklin’s other challenge to copyright of operating system programs relies on the line which is drawn between ideas and their expression. Baker v. Selden remains a benchmark in the law of copyright for the reading given it in Mazer v. Steinsupra, where the Court stated, “Unlike a patent, a copyright gives no exclusive right to the art disclosed; protection is given only to the expression of the idea – not the idea itself.” 347 U.S. at 217, 100 USPQ 333 (footnote omitted). 
The expression/idea dichotomy is now expressly recognized in section 102(b) which precludes copyright for “any idea.” This provision was not intended to enlarge or contract the scope of copyright protection but “to restate * * * that the basic dichotomy between expression and idea remains unchanged.” H.R. Rep. No. 1476, supra, at 57, reprinted in 1976 U.S. Code Cong. & Ad. News at 5670. The legislative history indicates that section 102(b) was intended “to make clear that the expression adopted by the programmer is the copyrightable element in a computer program, and that the actual processes or methods embodied in the program are not within the scope of the copyright law.” Id
Many of the courts which have sought to draw the line between an idea and expression have found difficulty in articulating where it falls. Seee.g.Nichols v. Universal Pictures Corp., 45 F.2d 119, 121, 7 USPQ 84, 86 (2d Cir. 1930) (L. Hand, J.); see discussion in 3 Nimmer on Copyright §13.03[A]. We believe that in the context before us, a program for an operating system, the line must be a pragmatic one, which also keeps in consideration “the preservation of the balance between competition and protection reflected in the patent and copyright laws”. Herbert Rosenthal Jewelry Corp. v. Kalpakian, 446 F.2d 738, 742, 170 USPQ 557, 559 (9th Cir. 1971). As we stated in Franklin Mint Corp. v. National Wildlife Art Exchange, Inc., 575 F.2d 62, 64, 197 USPQ 721, 723 (3d Cir.), cert. denied, 439 U.S. 880, 199 USPQ 57 (1978), “Unlike a patent, a copyright protects originality rather than novelty or invention.” In that opinion, we quoted approvingly the following passage from Dymow v. Bolton, 11 F.2d 690, 691 (2d Cir. 1926). 
Just as a patent affords protection only to the means of reducing an inventive idea to practice, so the copyright law protects the means of expressing an idea; and it is as near the whole truth as generalization can usually reach that, if the same idea can be expressed in a plurality of totally different manners, a plurality of copyrights may result, and no infringement will exist. 
(emphasis added). 
We adopt the suggestion in the above language and thus focus on whether the idea is capable of various modes of expression. If other programs can be written or created which perform the same function as an Apple’s operating system program, then that program is an expression of the idea and hence copyrightable. In essence, this inquiry is no different than that made to determine whether the expression and idea have merged, which has been stated to occur where there are no or few other ways of expressing a particular idea. Seee.g.Morrissey v. Procter & Gamble Co., 379 F.2d 675, 678-79, 154 USPQ 193, 194-95 (1st Cir. 1967); Freedman v. Grolier Enterprises, Inc., 179 USPQ 476, 478 (S.D.N.Y. 1973) (“[c]opyright protection will not be given to a form of expression necessarily dictated by the underlying subject matter”); CONTU Report at 20. 
The district court made no findings as to whether some or all of Apple’s operating programs represent the only means of expression of the idea underlying them. Although there seems to be a concession by Franklin that at least some of the programs can be rewritten, we do not believe that the record on that issue is so clear that it can be decided at the appellate level. Therefore, if the issue is pressed on remand, the necessary finding can be made at that time. 
Franklin claims that whether or not the programs can be rewritten, there are a limited “number of ways to arrange operating systems to enable a computer to run the vast body of Apple-compatible software,” Brief of Appellee at 20. This claim has no pertinence to either the idea/expression dichotomy or merger. The idea which may merge with the expression, thus making the copyright unavailable, is the idea which is the subject of the expression. The idea of one of the operating system programs is, for example, how to translate source code into object code. If other methods of expressing that idea are not foreclosed as a practical matter, then there is no merger. Franklin may wish to achieve total compatibility with independently developed application programs written for the Apple II, but that is a commercial and competitive objective which does not enter into the somewhat metaphysical issue of whether particular ideas and expressions have merged. 
In summary, Franklin’s contentions that operating system programs are per se not copyrightable is unpersuasive. The other courts before whom this issue has been raised have rejected the distinction. Neither the CONTU majority nor Congress made a distinction between operating and application programs. We believe that the 1980 amendments reflect Congress’ receptivity to new technology and its desire to encourage, through the copyright laws, continued imagination and creativity in computer programming. Since we believe that the district court’s decision on the preliminary injunction was, to a large part, influenced by an erroneous view of the availability of copyright for operating system programs and unnecessary concerns about object code and ROMs, we must reverse the denial of the preliminary injunction and remand for reconsideration.
* * * 
V. 
For the reasons set forth in this opinion, we will reverse the denial of the preliminary injunction and remand to the district court for further proceedings in accordance herewith.

Apple II+ Computer


Franklin ACE 100 Computer


Advertisement for Franklin ACE 100 Computer

Questions:
  1. Apple v. Franklin is often described as holding that copyright can protect computer programs. But the question presented to the court was more specific. Franklin did not copy the source code of the Apple operating system, but the object code embedded in the ROM of the Apple computer. So the court held that copyright protects the object code of a computer operating system embedded in a ROM chip. Do you agree? Can copyright protect object code as well as source code? Should it? Can it protect operating systems as well as applications? Should it? Can it protect computer programs in ROM as well as RAM? Should it? Which doctrines are implicated by each of these questions?
  2. The court held that copyright protection of the object code of the Apple operating system was consistent with Baker v. Selden. Do you agree?
  3. The court held that a computer operating system is not a "process," “system," "method of operation," or "purely utilitarian work," because "the statutory definition of a computer program as a set of instructions to be used in a computer in order to bring about a certain result . . . makes no distinction between application programs and operating programs." Do you find this convincing? Did Baker v. Selden interpret the statutory or constitutional scope of copyright?
  4. The court held that copyright protection of the Apple operating system was consistent with the idea/expression dichotomy because there is more than one way of expressing an operating system in a computer program, and "Apple does not seek to copyright the method which instructs the computer to perform its operating functions but only the instructions themselves." Do you find this convincing? Is it consistent with Baker v. Selden?
  5. Apple v. Franklin enabled Apple to force Franklin to pull its infringing clones from the market. Franklin eventually created non-infringing clones, but they unsuccessful, because they were only partially compatible with the Apple operating system. Does this affect your assessment of the court's analysis?
  6. Currently, computer programs can be protected by both copyright and patent. What are the advantages of each? Should computer programs enjoy both forms of protection? If not, which is more appropriate and why?

Tuesday, January 28, 2014

Class 7: Fixation

The Requirements for Copyright Protection

In Class 2, we learned that copyright can only protect original works of authorship that are fixed in a tangible medium of expression. We also learned that both originality and fixation are constitutional and statutory requirements for copyright protection.

Originality and fixation are constitutional requirements under the Intellectual Property Clause, which provides that copyright can only protect the "writings" of "authors." U.S. Const. Article I, Section 8, Clause 8. The Supreme Court has held that the term "authors" requires originality, and the term "writings" requires fixation. Feist Publications, Inc. v. Rural Telephone Service Co., 499 U.S. 340 (1991).

Originality and fixation are statutory requirements under Section 102(a) of the Copyright Act, which provides:
Copyright protection subsists . . . in original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device. 
17 U.S.C. § 102(a). In other words, copyright only protects "original works of authorship" that are "fixed in a tangible medium."

We have already studied the originality requirement. In Class 3, we studied the creation and creativity requirements for originality. In Class 4, we considered derivative works, and asked when they are original. In Class 5, we considered compilations, and asked when they are original. And in Class 6, we studied the idea/expression dichotomy, and asked when it prevents copyright from protecting an element of a work.

In this class, we will study the fixation requirement. We will study the definition of the terms "work of authorship" and "fixation," and ask what qualifies as a "tangible medium of expression."

Fixation

Fixation is a constitutional requirement of copyright, because the Intellectual Property Clause provides that copyright can only protect "writings." U.S. Const. Article I, Section 8, Clause 8. The Supreme Court has held that "writings" means any "physical rendering" of an original work of authorship. "[A]lthough the word "writings" might be limited to script or printed material, it may be interpreted to include any physical rendering of the fruits of creative intellectual or aesthetic labor." Goldstein v. California, 412 U.S. 546 (1973). So, the constitutional fixation requirement is satisfied by the creation of a physical rendering of a work in any medium.

The statutory fixation requirement tracks the constitutional requirement. The Copyright Act provides that works can be "fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device." 17 U.S.C. § 102(a). So, the statutory fixation requirement is also satisfied by the creation of a physical rendering of a work in any medium.

Under the 1976 Act, the fixation requirement is especially important, because copyrights are created by fixing original works of authorship in a tangible medium of expression. In other words, copyrights come into existence when the author of an original work writes a word, draws a line, takes a photograph, or records a sound. An author may register a work with the Copyright Office, but registration is not required, and does not create the copyright. 17 U.S.C. § 408.

The Ontology of Copyright

Copyright is a right to control certain uses of a form of intangible property called an original work of authorship. While copyright requires fixation in a tangible medium, it protects the work of authorship, not its physical rendering. As Section 202 of the Copyright Act provides:
Ownership of a copyright, or of any of the exclusive rights under a copyright, is distinct from ownership of any material object in which the work is embodied. Transfer of ownership of any material object, including the copy or phonorecord in which the work is first fixed, does not of itself convey any rights in the copyrighted work embodied in the object; nor, in the absence of an agreement, does transfer of ownership of a copyright or of any exclusive rights under a copyright convey property rights in any material object.
17 U.S.C. § 202.

For example, copyright protects literary works, including poems. Assume that Smith is the author of the following poem:
Roses are red,
Violets are blue;
All my base,
Are belong to you.
As soon as Smith makes a record of the poem in any medium, it can be protected by copyright. It does not matter whether Smith writes the poem on a piece of paper, types it into a computer, or makes an audio or video recording of someone reading it. The creation of any record of the poem creates a copyright in the poem. But the copyright protects the text of the poem, not the record.

Tangible Medium of Expression

The Constitution and the Copyright Act both require fixation in a tangible medium of expression, but they do not define "tangible medium of expression." Courts have generally held that the fixation requirement is satisfied when a work is recorded in a way that preserves it for a period of time, irrespective of the medium in which it is recorded. So, a work can be fixed in writing, in a computer, on a phonorecord, or in a film. But a fixation requires some kind of recording. Smith cannot satisfy the fixation requirement by reciting his poem aloud, and a musician cannot satisfy the fixation requirement by performing a song. A performance is not fixed unless it is recorded.

While copyright requires fixation, it is ecumenical about the medium in which a work is recorded. A recording in almost any medium will suffice, if it enables the perception or reproduction of the work. Notably, a recording satisfies the fixation requirement whether it enables direct perception of the recorded work, or requires the use of a machine to reproduce the recorded work.

However, the fixation of a work creates a copyright only if it is authorized by the author of the work. For example, if Smith recites the poem, and Jones records the poem without permission, Smith cannot claim a copyright based on Jones's recording, because it was not authorized. As a consequence, Jones can use the recording of the poem without restriction, and the recording cannot be protected by copyright.

Questions:
  1. In 1876, Caroline Shaw Brooks of Helena, Arkansas presented Dreaming Iolanthe, a bas-relief bust of a woman modeled in butter, at the Centennial International Exhibition in Philadelphia, Pennsylvania. Brooks preserved the sculpture by keeping it cold with a system of layered bowls and frequent ice changes. Was Dreaming Iolanthe fixed in a tangible medium?



    Caroline Shaw Brooks, Dreaming Iolanthe (1876)

  2. Nicole Falzone created an Etch-a-Sketch portrait of Andy Warhol. Is it fixed in a tangible medium?



    Nicole Falzone,
    Andy Warhol
  3. Carl Jara created a sand sculpture titled What Lies Beneath?. Sand sculptors use a glue-like adhesive to preserve their sculptures while they work. Are sand sculptures fixed in a tangible medium?



    Carl Jara,
    What Lies Beneath?

  4. In The Ambassador (2011), Mads Brugger poses as a Liberian diplomat and secretly films Liberian and Central African Republic officials engaging in allegedly corrupt activities. Can copyright protect the secretly filmed elements?

Digital Fixation

Several courts have considered whether digital images, including video games, are fixed in a tangible medium. Digital images are recorded in computer memory as electrical impulses, then decoded and presented on the screen. Moreover, video games incorporate variations caused by human intervention. Does a video game exist before it is played, and is a contingent game fixed in a tangible medium.

Stern Electronics Inc. v. Kaufman, 669 F.2d 852 (2d Cir. 1982)
NEWMAN, Circuit Judge: 
This appeal from the grant of a preliminary injunction concerns primarily the availability of copyright protection for the visual images electronically displayed by a coin-operated video game of the sort currently enjoying widespread popularity throughout the country. Omni Video Games, Inc., its distributor, and two of its officers appeal from an order entered May 22, 1981 in the District Court for the Eastern District of New York (Eugene H. Nickerson, Judge), preliminarily enjoining them from infringing the copyright of Stern Electronics, Inc. in the audiovisual work entitled "Scramble" and from making further use of the trademark "SCRAMBLE" in connection with electronic video games. 523 F.Supp. 635. Appellants contend that the visual images and accompanying sounds of the video game fail to satisfy the fixation and originality requirements of the Copyright Act, 17 U.S.C.App. § 102(a) (1976), and that they, rather than appellees, have superior rights to the mark "SCRAMBLE". We reject these contentions and affirm the preliminary injunction. 
Video games like "Scramble" can roughly be described as computers programmed to create on a television screen cartoons in which some of the action is controlled by the player. In Stern's "Scramble," for example, the video screen displays a spaceship moving horizontally through six different scenes in which obstacles are encountered. With each scene the player faces increasing difficulty in traversing the course and scoring points. The first scene depicts mountainous terrain, missile bases, and fuel depots. The player controls the altitude and speed of the spaceship, decides when to release the ship's supply of bombs, and fires lasers that can destroy attacking missiles and aircraft. He attempts to bomb the missile bases (scoring points for success), bomb the fuel depots (increasing his own diminishing fuel supply with each hit), avoid the missiles being fired from the ground, and avoid crashing his ship into the mountains. And that is only scene one. In subsequent scenes the hazards include missile-firing enemy aircraft and tunnel-like airspaces. The scenes are in color, and the action is accompanied by battlefield sounds. 
The game is built into a cabinet containing a cathode ray tube, a number of electronic circuit boards, a loudspeaker, and hand controls for the player. The electronic circuitry includes memory storage devices called PROMs, an acronym for "programmable read only memory." The PROM stores the instructions and data from a computer program in such a way that when electric current passes through the circuitry, the interaction of the program stored in the PROM with the other components of the game produces the sights and sounds of the audiovisual display that the player sees and hears. The memory devices determine not only the appearance and movement of the images but also the variations in movement in response to the player's operation of the hand controls. 
Stern manufactures amusement equipment, including video games, for distribution worldwide. In January 1981 at a London trade exhibit Stern became aware of "Scramble," an electronic video game developed in late 1980 by a Japanese corporation, Konami Industry Co., Ltd. The audiovisual display constituting what Stern alleges is the copyrightable work was first published in Japan on January 8, 1981. Stern secured an exclusive sub-license to distribute the "Scramble" game in North and South America from Konami's exclusive licensee, and began selling the game in the United States on March 17, 1981. Even in the fast-paced world of video games, "Scramble" quickly became a big success. Approximately 10,000 units were sold at about $2,000 each in the first two months for an initial sales volume of about $20 million. 
On April 14, 1981, a Certificate of Copyright Registration for the audiovisual work "Scramble" was issued to Konami by the United States Copyright Office, and shortly thereafter documents were filed with the Copyright Office reflecting the license and sub-license to Stern. To satisfy the statutory requirement for deposit of copies of a work to be copyrighted, 17 U.S.C.App. § 408(b) (1976), Konami submitted video tape recordings of the "Scramble" game, both in its "attract mode" and in its "play mode." 
Omni alleges that, concurrently with Stern's sales of the "Scramble" game and even earlier, it was endeavoring to sell a line of video game products so constructed that each unit could be equipped for playing different games by substituting a PROM containing the program for a particular game. Omni contends that it planned to market this line of interchangeable games with the label "Scramble" affixed to the headboard of each unit; the name of the particular game was also to be prominently displayed. On December 1, 1980, Omni's president ordered ten silk screen name plates bearing the name "Scramble." Between that date and March 17, 1981, the date of Stern's first sale of its "Scramble" game, Omni sold five units of video games bearing the name "Scramble" on the headboard. In April 1981 Omni began to sell a video game called "Scramble" that not only bears the same name as the "Scramble" game Stern was then marketing, but also is virtually identical in both sight and sound. It sold this copy of Stern's "Scramble" game, known in the trade as a "knock-off," for several hundred dollars less than Stern's game. 
1. Copyright Issues 
In challenging the preliminary injunction that bars distribution of its "Scramble" game, Omni does not dispute that Konami and its sub-licensee Stern are entitled to secure some copyright protection for their "Scramble" game. Omni contends that Konami was entitled to copyright only the written computer program that determines the sights and sounds of the game's audiovisual display. While that approach would have afforded some degree of protection, it would not have prevented a determined competitor from manufacturing a "knock-off" of "Scramble" that replicates precisely the sights and sounds of the game's audiovisual display. This could be done by writing a new computer program that would interact with the hardware components of a video game to produce on the screen the same images seen in "Scramble," accompanied by the same sounds. Such replication is possible because many different computer programs can produce the same "results," whether those results are an analysis of financial records or a sequence of images and sounds. A program is simply "a set of statements (i.e., data) or instructions to be used directly or indirectly in a computer in order to bring about a certain result," Pub.L.No. 96-517, § 10(a), 94 Stat. 3015, 3028 (1980) (amending 17 U.S.C.App. § 101 (1976)). To take an elementary example, the result of displaying a "4" can be achieved by an instruction to add 2 and 2, subtract 3 from 7, or in a variety of other ways. Obviously, writing a new program to replicate the play of "Scramble" requires a sophisticated effort, but it is a manageable task. 
To secure protection against the risk of a "knock-off" of "Scramble" based upon an original program, Konami eschewed registration of its program as a literary work and chose instead to register the sights and sounds of "Scramble" as an audiovisual work. See 17 U.S.C.App. § 102(a)(6) (1976). The Act defines "audiovisual works" as "works that consist of a series of related images which are intrinsically intended to be shown by the use of machines, or devices such as projectors, viewers, or electronic equipment, together with accompanying sounds, if any, regardless of the nature of the material objects, such as films or tapes, in which the works are embodied." 17 U.S.C.App. § 101 (1976). Omni contends that Konami is not entitled to secure a copyright in the sights and sounds of its "Scramble" game because the audiovisual work is neither "fixed in any tangible medium of expression" nor "original" within the meaning of § 102(a). Both contentions arise from the fact that the sequence of some of the images appearing on the screen during each play of the game will vary depending upon the actions taken by the player. For example, if he fails to avoid enemy fire, his spaceship will be destroyed; if he fails to destroy enough fuel depots, his own fuel supply will run out, and his spaceship will crash; if he succeeds in destroying missile sites and enemy planes, those images will disappear from the screen; and the precise course travelled by his spaceship will depend upon his adjustment of the craft's altitude and velocity. 
If the content of the audiovisual display were not affected by the participation of the player, there would be no doubt that the display itself, and not merely the written computer program, would be eligible for copyright. The display satisfies the statutory definition of an original "audiovisual work," and the memory devices of the game satisfy the statutory requirement of a "copy" in which the work is "fixed." The Act defines "copies" as "material objects ... in which a work is fixed by any method now known or later developed, and from which the work can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device" and specifies that a work is "fixed" when "its embodiment in a copy ... is sufficiently permanent or stable to permit it to be perceived, reproduced, or otherwise communicated for a period of more than transitory duration." 17 U.S.C.App. § 101 (1976). The audiovisual work is permanently embodied in a material object, the memory devices, from which it can be perceived with the aid of the other components of the game. 
We agree with the District Court that the player's participation does not withdraw the audiovisual work from copyright eligibility. No doubt the entire sequence of all the sights and sounds of the game are different each time the game is played, depending upon the route and speed the player selects for his spaceship and the timing and accuracy of his release of his craft's bombs and lasers. Nevertheless, many aspects of the sights and the sequence of their appearance remain constant during each play of the game. These include the appearance (shape, color, and size) of the player's spaceship, the enemy craft, the ground missile bases and fuel depots, and the terrain over which (and beneath which) the player's ship flies, as well as the sequence in which the missile bases, fuel depots, and terrain appears. Also constant are the sounds heard whenever the player successfully destroys an enemy craft or installation or fails to avoid an enemy missile or laser. It is true, as appellants contend, that some of these sights and sounds will not be seen and heard during each play of the game in the event that the player's spaceship is destroyed before the entire course is traversed. But the images remain fixed, capable of being seen and heard each time a player succeeds in keeping his spaceship aloft long enough to permit the appearances of all the images and sounds of a complete play of the game. The repetitive sequence of a substantial portion of the sights and sounds of the game qualifies for copyright protection as an audiovisual work. 
Appellants' claim that the work lacks originality proceeds along two lines. Repeating their attack on fixation, they assert that each play of the game is an original work because of the player's participation. The videotape of a particular play of the game, they assert, secured protection only for that one "original" display. However, the repeated appearance of the same sequence of numerous sights and sounds in each play of the game defeats this branch of the argument. Attacking from the opposite flank, appellants contend that the audiovisual display contains no originality because all of its reappearing features are determined by the previously created computer program. This argument is also without merit. The visual and aural features of the audiovisual display are plainly original variations sufficient to render the display copyrightable even though the underlying written program has an independent existence and is itself eligible for copyright. Nor is copyright defeated because the audiovisual work and the computer program are both embodied in the same components of the game. The same thing occurs when an audio tape embodies both a musical composition and a sound recording. Moreover, the argument overlooks the sequence of the creative process. Someone first conceived what the audiovisual display would look like and sound like. Originality occurred at that point. Then the program was written. Finally, the program was imprinted into the memory devices so that, in operation with the components of the game, the sights and sounds could be seen and heard. The resulting display satisfies the requirement of an original work. 
We need not decide at what point the repeating sequence of images would form too insubstantial a portion of an entire display to warrant a copyright, nor the somewhat related issue of whether a sequence of images (e.g., a spaceship shooting down an attacking plane) might contain so little in the way of particularized form of expression as to be only an abstract idea portrayed in noncopyrightable form, see Nichols v. Universal Pictures Corp., 45 F.2d 119, 121 (2d Cir. 1930), cert. denied, 282 U.S. 902, 51 S.Ct. 216, 75 L.Ed. 795 (1931). Assessing the entire effect of the game as it appears and sounds, we conclude that its repetitive sequence of images is copyrightable as an audiovisual display. See Atari, Inc. v. Amusement World, Inc., No. 81-803 (D.Md. Nov. 27, 1981); Midway Manufacturing Co. v. Drikschneider, No. 81-0-243 (D.Neb. July 15, 1981); Williams Electronics, Inc. v. Artic International, Inc., Civ. No. 81-1852 (D.N.J. June 24, 1981); Cinematronics, Inc. v. K. Noma Enterprise Co., Civ. No. 81-439 (D.Ariz. May 22, 1981).




Scramble (Konami 1981)

Questions:
  1. The court held that Scramble is fixed in a tangible medium because, "The audiovisual work is permanently embodied in a material object, the memory devices, from which it can be perceived with the aid of the other components of the game." In other words, the program is recorded on the ROM chip, and the processor uses the recording to produce the audiovisual work. Do you agree? What is fixed, the program or the audiovisual work?
  2. Stern claims a copyright in the audiovisual work itself, rather than the program used to produce the audiovisual work. What if a different program could produce the same audiovisual work?

Williams Electronics Inc v. Artic International Inc.685 F. 2d 870 (3d Cir. 1982)
SLOVITER, Circuit Judge. 
Defendant Artic International, Inc. appeals from the district court's entry of a final injunction order permanently restraining and enjoining it from infringing plaintiff's copyrights on audiovisual works and a computer program relating to the electronic video game DEFENDER. The district court severed plaintiff's demand for injunctive relief from its demand for monetary damages, and further severed plaintiff's claims of copyright infringement from its claims of trademark infringement and unfair competition. App. at 210a. These latter claims have not yet been adjudicated. However, because the injunction granted by the district court goes to the merits of the dispute and has "serious, perhaps irreparable, consequences", the order can be considered a "routine interlocutory injunctive order" and appealable under 28 U.S.C. § 1292(a)(1). See Shirey v. Bensalem Township, 663 F.2d 472, 476-77 & n.3 (3d Cir. 1981); Tokarcik v. Forest Hills School District, 665 F.2d 443, 446-47 (3d Cir. 1981). 
Plaintiff-appellee Williams Electronics, Inc. manufactures and sells coin-operated electronic video games. A video game machine consists of a cabinet containing, inter alia, a cathode ray tube (CRT), a sound system, hand controls for the player, and electronic circuit boards. The electronic circuitry includes a microprocessor and memory devices, called ROMs (R ead O nly M emory), which are tiny computer "chips" containing thousands of data locations which store the instructions and data of a computer program. The microprocessor executes the computer program to cause the game to operate. Judge Newman of the Second Circuit described a similar type of memory device as follows: "The (ROM) stores the instructions and data from a computer program in such a way that when electric current passes through the circuitry, the interaction of the program stored in the (ROM) with the other components of the game produces the sights and sounds of the audiovisual display that the player sees and hears. The memory devices determine not only the appearance and movement of the (game) images but also the variations in movement in response to the player's operation of the hand controls." Stern Electronics, Inc. v. Kaufman, 669 F.2d 852, 854 (2d Cir. 1982). 
In approximately October 1979 Williams began to design a new video game, ultimately called DEFENDER, which incorporated various original and unique audiovisual features. The DEFENDER game was introduced to the industry at a trade show in 1980 and has since achieved great success in the marketplace. One of the attractions of video games contributing to their phenomenal popularity is apparently their use of unrealistic fantasy creatures, a fad also observed in the popularity of certain current films. In the DEFENDER game, there are symbols of a spaceship and aliens who do battle with symbols of human figures. The player operates the flight of and weapons on the spaceship, and has the mission of preventing invading aliens from kidnapping the humans from a ground plane. 
Williams obtained three copyright registrations relating to its DEFENDER game: one covering the computer program, Registration No. TX 654-755, effective date December 11, 1980; the second covering the audiovisual effects displayed during the game's "attract mode", Registration No. PA 97-373, effective date March 3, 1981; and the third covering the audiovisual effects displayed during the game's "play mode", Registration No. PA 94-718, effective date March 11, 1981. Readily visible copyright notices for the DEFENDER game were placed on the game cabinet, appeared on the CRT screen during the attract mode and at the beginning of the play mode, and were placed on labels which were attached to the outer case of each memory device (ROM). In addition, the Williams program provided that the words "Copyright 1980-Williams Electronics" in code were to be stored in the memory devices, but were not to be displayed on the CRT at any time. 
Defendant-appellant Artic International, Inc. is a seller of electronic components for video games in competition with Williams. The district court made the following relevant findings which are not disputed on this appeal. Artic has sold circuit boards, manufactured by others, which contain electronic circuits including a microprocessor and memory devices (ROMs). These memory devices incorporate a computer program which is virtually identical to Williams' program for its DEFENDER game. The result is a circuit board "kit" which is sold by Artic to others and which, when connected to a cathode ray tube, produces audiovisual effects and a game almost identical to the Williams DEFENDER game including both the attract mode and the play mode. The play mode and actual play of Artic's game, entitled "DEFENSE COMMAND", is virtually identical to that of the Williams game, i.e., the characters displayed on the cathode ray tube including the player's spaceship are identical in shape, size, color, manner of movement and interaction with other symbols. Also, the attract mode of the Artic game is substantially identical to that of Williams' game, with minor exceptions such as the absence of the Williams name and the substitution of the terms "DEFENSE" and/or "DEFENSE COMMAND" for the term "DEFENDER" in its display. App. at 204a-206a. Based on the evidence before it, the district court found that the defendant Artic had infringed the plaintiff's computer program copyright for the DEFENDER game by selling kits which contain a computer program which is a copy of plaintiff's computer program, and that the defendant had infringed both of the plaintiff's audiovisual copyrights for the DEFENDER game by selling copies of those audiovisual works. App. at 207a-209a. 
In the appeal before us, defendant does not dispute the findings with respect to copying but instead challenges the conclusions of the district court with respect to copyright infringement and the validity and scope of plaintiff's copyrights. The recent market interest in electronic audiovisual games has created an active market for original work, and as frequently happens, has also spawned copies, many of which have been the subject of a flurry of recent opinions. See, e.g., Atari, Inc. v. North American Philips Consumer Electronics Corp., 672 F.2d 607 (7th Cir. 1982); Stern Electronics, Inc. v. Kaufman, 669 F.2d 852 (2d Cir. 1982); Midway Manufacturing Co. v. Omni Video Games, Inc., 668 F.2d 70 (1st Cir. 1981); Midway Manufacturing Co. v. Artic International, Inc., No. 80 C 5863 (N.D.Ill. March 10, 1982); Atari, Inc. v. Amusement World, Inc., No. Y-81-803 (D.Md. Nov. 27, 1981); Midway Manufacturing Co. v. Drikschneider, 543 F.Supp. 466, (D.Neb. 1981); In Re Certain Coin-Operated Audiovisual Games and Components Thereof (viz, Pac-Man and Rally-X ), No. 337-TA-105 (International Trade Commission July 1, 1982); In Re Coin-Operated Audio-Visual Games and Components Thereof, No. 337-TA-87 (International Trade Commission June 25, 1981). 
In the case before us, the parties agreed at the district court level that the only issues to be decided on the injunction were legal ones. App. at 199a. Essentially, defendant Artic attacks the validity and the scope of the copyrights which it has been found by the district court to have infringed. Plaintiff possesses certificates of registration issued by the Copyright Office. Under the Copyright Act, these certificates constitute prima facie evidence of the validity of plaintiff's copyright. 17 U.S.C. § 410(c). Defendant, therefore, has the burden of overcoming this presumption of validity. See Flick-Reedy Corp. v. Hydro-Line Manufacturing Co., 351 F.2d 546, 549 (7th Cir. 1965), cert. denied, 383 U.S. 958, 86 S.Ct. 1222, 16 L.Ed.2d 301 (1966). 
With respect to the plaintiff's two audiovisual copyrights, defendant contends that there can be no copyright protection for the DEFENDER game's attract mode and play mode because these works fail to meet the statutory requirement of "fixation." Section 101 of the 1976 Copyright Act, 17 U.S.C. § 102, provides in part: 
(a) Copyright protection subsists ... in original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device. Works of authorship include the following categories: 
(1) literary works; 
.... 
(6) motion pictures and other audiovisual works; 
.... 
(emphasis added). The fixation requirement is defined in section 101 in relevant part as follows: 
A work is "fixed" in a tangible medium of expression when its embodiment in a copy or phonorecord, by or under the authority of the author, is sufficiently permanent or stable to permit it to be perceived, reproduced, or otherwise communicated for a period of more than transitory duration. 
Defendant claims that the images in the plaintiff's audiovisual game are transient, and cannot be "fixed." Specifically, it contends that there is a lack of "fixation" because the video game generates or creates "new" images each time the attract mode or play mode is displayed, notwithstanding the fact that the new images are identical or substantially identical to the earlier ones. 
We reject this contention. The fixation requirement is met whenever the work is "sufficiently permanent or stable to permit it to be ... reproduced, or otherwise communicated" for more than a transitory period. Here the original audiovisual features of the DEFENDER game repeat themselves over and over. The identical contention was previously made by this defendant and rejected by the court in Midway Manufacturing Co. v. Artic International, Inc., supra, slip op. at 16-18. Moreover, the rejection of a similar contention by the Second Circuit is also applicable here. The court stated: 
The (video game's) display satisfies the statutory definition of an original "audiovisual work," and the memory devices of the game satisfy the statutory requirement of a "copy" in which the work is "fixed." The Act defines "copies" as "material objects ... in which a work is fixed by any method now known or later developed, and from which the work can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device" and specifies that a work is "fixed" when "its embodiment in a copy ... is sufficiently permanent or stable to permit it to be perceived, reproduced, or otherwise communicated for a period of more than transitory duration." 17 U.S.C.App. § 101 (1976). The audiovisual work is permanently embodied in a material object, the memory devices, from which it can be perceived with the aid of the other components of the game. Stern Electronics, Inc. v. Kaufman, 669 F.2d at 855-56 (footnote omitted; emphasis added). See also Midway Manufacturing Co. v. Drikschneider, supra, at 479-80; Atari, Inc. v. Amusement World, Inc., supra
Defendant also apparently contends that the player's participation withdraws the game's audiovisual work from copyright eligibility because there is no set or fixed performance and the player becomes a co-author of what appears on the screen. Although there is player interaction with the machine during the play mode which causes the audiovisual presentation to change in some respects from one game to the next in response to the player's varying participation, there is always a repetitive sequence of a substantial portion of the sights and sounds of the game, and many aspects of the display remain constant from game to game regardless of how the player operates the controls. See Stern Electronics, Inc. v. Kaufman, 669 F.2d at 855-56. Furthermore, there is no player participation in the attract mode which is displayed repetitively without change. 
Defendant argues that there can be no copyright protection for the ROMs because they are utilitarian objects or machine parts. Defendant's argument in this regard is misdirected. The issue in this case is not whether plaintiff, if it sought, could protect the ROM itself under the copyright laws. Rather, before us is only the plaintiff's effort to protect its artistic expression in original works which have met the statutory fixation requirement through their embodiment in the ROM devices. Defendant Artic's challenge to the validity of a copyright based upon this "utilitarian object" argument was recently raised by Artic and rejected by the district court in Midway Manufacturing Co. v. Artic International, Inc., supra, slip op. at 19-20. In granting a preliminary injunction against Artic's infringement of audiovisual copyrights on similar electronic video games, Judge Decker stated:Artic initially claims that Midway's attempt to copyright the audiovisual aspects of its games was, in reality, an attempt to copyright the ROMs in the games. Because the ROMs are utilitarian objects, they may not be copyrighted .... While the court agrees that utilitarian objects may not be copyrighted, it appears that Artic has misconstrued the copyrights at issue in this case. As noted above, Midway has sought and obtained protection for the audiovisual aspects of its games that appear on the screen. Midway no more restricts the use of ROMs than an author with a valid copyright restricts the use of books. Id. at 19 (citation omitted).
. . . 
Defendant argues that the basic question presented is whether the ROMs, which it views as part of a machine, can be considered a "copy" of a copyrighted work within the meaning of the Copyright Act. Defendant argues that a copyright for a computer program is not infringed when the program is loaded into electronic memory devices (ROMs) and used to control the activity of machines. That use, it claims, is a utilitarian one not within the scope of the Copyright Act. We have already rejected defendant's similar argument in the context of the copyrights for the audiovisual works. Defendant makes the further point that when the issue is the copyright on a computer program, a distinction must be drawn between the "source code" version of a computer program, which it would hold can be afforded copyright protection, and the "object code" stage, which it contends cannot be so protected. Its theory is that a "copy" must be intelligible to human beings and must be intended as a medium of communication to human beings. 
The answer to defendant's contention is in the words of the statute itself. A "copy" is defined to include a material object in which a work is fixed "by any method now known or later developed, and from which the work can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device." 17 U.S.C. § 101 (emphasis added). By this broad language, Congress opted for an expansive interpretation of the terms "fixation" and "copy" which encompass technological advances such as those represented by the electronic devices in this case. We reject any contention that this broad language should nonetheless be interpreted in a manner which would severely limit the copyrightability of computer programs which Congress clearly intended to protect. We cannot accept defendant's suggestion that would afford an unlimited loophole by which infringement of a computer program is limited to copying of the computer program text but not to duplication of a computer program fixed on a silicon chip. This was also the conclusion reached in Tandy Corp. v. Personal Micro Computers, Inc., 524 F.Supp. 171, 175 (N.D.Cal.1981) (Peckham, C. J.), albeit in the context of computers rather than video games. 
The only authority upon which defendant relies for its claim that plaintiff is entitled to no copyright protection is the district court's opinion in Data Cash Systems, Inc. v. JS&A Group, Inc., 480 F.Supp. 1063 (N.D.Ill.1979), aff'd on other grounds, 628 F.2d 1038 (7th Cir. 1980). Significantly, the statements of the district court in that case that the copying of ROMs was not actionable under the copyright laws was not the basis of the affirmance by the Court of Appeals which expressly stated that it did not reach the merits of this issue. 628 F.2d at 1041. It has been suggested that the Court of Appeals implicitly reversed the district court on that issue. See 2 Nimmer on Copyright, § 8.08 at 8-106.3 n.18 (1981); Tandy Corp. v. Personal Micro Computers, Inc., 524 F.Supp. at 175. The district court's analysis in Data Cash has been expressly rejected in both the video game audiovisual copyright context, Midway Manufacturing Co. v. Artic International, Inc., supra, slip op. at 27-29, and the computer program copyright context, Tandy Corp. v. Personal Micro Computers, Inc., 524 F.Supp. at 175. Accordingly, we find that defendant has failed to provide any persuasive reason which would overcome the statutory presumption of validity of the copyright registration and we will affirm the district court's grant of an injunction.
. . . 




Defender (Williams Electronics, Inc. 1980)


Defense Command (Artic International, Inc. 1981)

Questions:
  1. The court held that the audiovisual elements of Defender were fixed in a tangible medium because "the original audiovisual features of the DEFENDER game repeat themselves over and over." Do you agree?
  2. If a videogame is fixed, why isn't a performance fixed? Or rather, if a performance isn't fixed, why is the audiovisual element of a videogame fixed?
  3. With respect to audio works, copyright distinguishes between compositions and performances. Is that distinction relevant to video games?
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