Summary of Facts

Plaintiff X is Taito Company, Inc. Defendant X1 is I.N.G. Enterprises Co., Inc. and Defendant X2 is its representative director.

Beginning in mid-August 1979, X marketed or leased television-like game machines for "Space Invaders Part II" (said machines hereafter, the "Machines").

The structure of the game, including the images and changes in those images, (hereafter, the "Game Structure") is manifested by the software programs, or source program (hereafter, the "Program"), expressed by an assembly language and received in the form of electrical signals by the memory apparatus (ROM) of the Machine's computer, which also enables the Program to convert this machine language (the Program as converted to machine language hereafter, the "Object Program").

Y1 took orders from customers and by dismantling the baseboard of the computer system of a game machine which plays another game and then having nonparty A put the Object Program onto this baseboard and reconnect it to the customer's game machine could reconstruct any television-like game machine receiver to play the Game Structure and then return it to the customer.

X claims that the Program is a copyrighted work and that X is the copyright holder, that Y1's action in removing the ROM of the Object Program constitutes duplication of the Program and that Y1 has made a profit by its reconstruction activities taken at the request of customers, and that X has been damaged in that same amount, and has brought this case against X1 and its representative director, X2, demanding restitution damages.

Y1 and Y2 claim that because the assembly language used by the Program is not something which humans can gain understanding of, nor can it be understood to be the expression of an objective idea, the Program is not the creative expression of ideas or feelings and is, therefore, not a copyrightable work.

Gist

"The Program, in addition to having the purpose of playing the Game Structure on the Machines receiver by dividing the various necessary problems into small parts, analyzing them, and discovering solutions to them, also, based on a flow chart prepared in accordance with the discovered solutions, expresses a combination of various commands and other information according to a signal language (assembly language) understandable by a third party with knowledge of the field. It is only nature that the method of solution discovery or of command combination would require the theoretical ideas of the programer and it is clear that final completed programs contain individual differences which depend on who the programmer was. Consequently, the Program is the creative expression of the original scientific ideas of its programmer and is therefore recognizable as a copyrightable work entitled to the protection of the Copyright Law."

"The Object Program put into the ROM of the Machine's computer system, in addition to converting the signal language (assembly language) of the Program into machine language (in this case, expressed by two base 16 units) readable by computers developed for that purpose, also receives the Machine's fixed ROM memory element, in the form of electrical signals. This conversion of the signal language into machine language by mechanical substitution is possible because the two languages have a binary equivalence relationship and such conversion does not interfere with the creative activities that make the program copyrightable. The Object Program which receives the electrical signals fixed in the ROM, can also receive electrical signals fixed in other ROMs by using a duplication mechanism known as ROM writer. Nonparty A and others used the above means to put the Object Program into he ROM of another game machine and, when the ROM had received the program by placing into memory al that was not erased by its preprogramming, could execute the consecutive commands of the Central Processing Unit (CPU), which would read out the information inside the ROM (program) when the computer system power switch was activated. This action can be perceived as the playing of the Game Structure on another game machine receiver.

According to the above facts, the Object Program can be considered a duplication of the Program and the action of nonparty A, and others, in putting the Object Program into another ROM can be considered to be duplicating a duplication, which is, in turn, a material reproduction of the copyrighted work, the Program. "

Claim allowed.

(translation by Vicki L. Beyer)

Temple University Japan