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., Sega, Nintendo) 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 (Atari 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uses – parody – propriety of defendant’s conduct • Nature of the Copyrighted Work – fictional works/factual works – unpublished/published • Amount of the portion used • Impact on Potential Market – rival definitions of “market” – only substitution effects are cognizable Fair Use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the Copyrighted Work – fictional works/factual works: computer programs deserve less protection that fictional works – unpublished/published: sale of program = publication • Amount of the portion used: concede A copied entire program • Impact on Potential Market – rival definitions of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 .