Organization of Computer Programs Organization of Computer Programs

Hardware Organization of Computer Programs

Operating System

Hardware Organization of Computer Programs

Application Application Program Program

Operating System

Hardware Interoperability

Application Application Program Program

Operating System

Hardware Interoperability

Application Application Program Program

Operating System

Hardware Interoperability Strategy #1 (e.g., Microsoft, Apple)

Borland Microsoft

Free access Microsoft

Dell Interoperability Strategy #2 (e.g., , )

Licensee Nintendo

License fees Nintendo

Nintendo Interoperability Strategy #3 (e.g., MAI Systems Corp.)

MAI MAI

No licenses MAI

MAI Sega (CA9 1992)

Licensed Sega Games Games

License fees TMSS

Sega Genesis III Sega (CA9 1992)

Licensed Sega Games Games Accolade Games

License fees TMSS Lock-out

Sega Genesis III Sega (CA9 1992)

Microcode (copied by Accolade) Licensed Sega Games Games Accolade Games

License fees TMSS Lock-out

Sega Genesis III Sega (CA9 1992)

Licensed Sega Games Games Accolade Games License fees TMSS TMSS initialization Lock-out code

Sega Genesis III Sega (CA9 1992)

Licensed Sega Games Games Accolade Games

License fees TMSS

Sega Genesis III Reverse Engineering for Interoperability • Courts finding this to be fair use: – CAFC ( 1992 [dictum]; Bowers 2003 [dictum]) – CA5 (DSC Communications 1996) – CA 9 (Sega 1992; Sony 2000) – CA11 (Bateman 1996) • EC Directive 91/250, Art. 6, takes same position Fair Use Doctrine

• Purpose and Character of the Use – commercial use – transformative uses – parody – propriety of defendant’s conduct • Nature of the Copyrighted Work – fictional works/factual works – unpublished/published • Amount of the portion used • Impact on Potential Market – rival definitions of “market” – only substitution effects are cognizable Fair Use Doctrine -- as applied in Sega

• Purpose and Character of the Use – commercial use: purpose of A’s copying was “study” (noncom) – transformative uses: concede no transformative use – parody: n.a. – propriety of defendant’s conduct: stress decency of A’s behavior • Nature of the Copyrighted Work – fictional works/factual works: computer programs deserve less protection that fictional works – unpublished/published: sale of program = publication • Amount of the portion used: concede A copied entire program • Impact on Potential Market – rival definitions of “market”: implicit adoption of narrow version – only substitution effects are cognizable