1997 (ne) No. 3587 an appeal from the decision of the Osaka District Court l996 (wa) No. 12221 on damages etc.
translated by Takeo Hayakawa
D E C I S I O N

 (stamped: Decision delivered on April 27, 1999 and Original received on April 27, 1999
                                                      Osaka High Court Clerk)

      7-chome 3-2 Minatojima Nakamachi, Chuoku, Kobe
             Appellant (Plaintiff)              KONAMI Kabushiki Kaisha
                                            represented by Kagemasa KOZUKI
                                                        President
             Counsel for appellant              Toshio YANAGIHARA, Attorney at Law

      1-chome 9-33 Ona, Chuoku, Fukuoka
              Appellee (Defendant)            Spec Computer Kabushiki Kaisha
                                            represented by Hisashi NAGAYAMA
                                                        President
              Counsel for appellee              Norio YAMAMOTO, Attorney at Law
           Tomoko YAMAMOTO, Attorney at Law

Formal Judgment

I  The judgment of the court below shall be modified as follows:
   1  Appellee shall pay to appellant the sum of \l,146,000 plus an interest of 5 per cent per annum from December 27, 1996 to the day of full payment.

   2  Appellant's other claims are dismissed.

II  The cost of litigation in both the first and second instances shall be divided into five parts, one part shall be borne by appellee, and the rest by appellant.

III  Provisional execution is allowed with regard to Paragraph I, Subparagraph 1 of this judgment.

Facts and  Reasons

Pt  1  Appellant's claims
  I   That the judgment of the court below be modified as follows:

  II   That appellee pay to appellant the sum of \1,146,000 plus an interest of 5 per cent per annum from December 27, 1996 to the day of full payment.
  III  That appellee publish an apology in the Asahi Newspaper (national edition) and the Mainichi Newspaper (national edition) once in each as prescribed in schedule 2 attached to the decision of the court below.

  IV  That the cost of litigation in both the first and second instances be borne by appellee.

  V  That provisional execution be allowed with regard to Paragraph II above.

Pt 2  Outlines of the case
     (Hereinafter appellant shall be called plaintiff, and appellee defendant.)
    Except for the following additions, our position is exactly the same as "Pt 2 Outlines of the case," "Pt 3 Issues," and "Pt 4 Parties' arguments on issues" in "Facts and Reasons" of the decision of the court below, so that we quote those statements (although, as stated later, we modify its characterization of the instant game soft as "a film (cinematographic) work").

 [Plaintiff's argument in this instance]
   I The essential quality of "the right to preserve the integrity of a work" as an author's moral (personal) right lies in the inviolability of "the integrity of a work in its contents" when it is made available to the public for their utilization.  It is to be distinguished from the essential quality of a copyright as a property right in that the latter forbids an unauthorized utilization of a work by a non-copyright-holder. In considering a violation of the right to preserve the integrity of a work, therefore, we have to review a whole series of processes of making the work available to the general public for their utilization and to inquire at what stage an act was done to impair "the integrity of the work in its contents."

    Whether a work is modified or not should be judged not by the integrity of the form of its expression, but by the broader integrity of the contents of its expression, so that a modification need not be one involving "elements essentially characteristic of the form of a work's expression."  In principle it is forbidden to alter even one letter or one word, or to start a new line in the wrong place.

   Seeing that the Copyright Act, § 20 (1) providing for the right to preserve the integrity of a work is intended to extend protection even to the integrity of "its title" which does not form any part of its contents, it is evident that the scope of protection of the right is not limited to "elements essentially characteristic of the form of a work's expression," but literally all the contents of its expression plus its title.

 II  Does the instant game soft qualify as a work?
   The instant game soft is a new genre of work that does not fall under any of the categories of works enumerated by way of illustration in the Copyright Act, §10; it is not a film work pure and simple or a mere program work. It may be characterized as "a game soft work," so to speak. In other words, the instant game soft as a work has all the contents of a game put into it in the course of production, which in concrete terms are a film work plus inherent contents of a game soft, i. e., (a) "game balance" and (b) "interactiveness" (the court below characterized the instant game soft as "a film work," but we modify this characterization as above).

   As a consequence, the instant game soft, not invariably fixed in its contents like a novel, a film or a piece of music, has a certain latitude in the way of game development, so that we have to determine whether an apparent modification of it is a deviation from or safely within "the allowed latitude in the game development" that constitutes the contents of the game soft work.

 III  Concrete patterns of modification in the instant game soft
     [Blocks 1 -- 11 of the instant memory cards]
    1  Modification of the character figuration of the hero
     (i) Change of the numerical values of parameters as of April 9, 1995
  The data in blocks 1 -- 11 of the instant (defendant's) memory cards are the numerical values of the nine parameters as at the night of Sunday, April 9, 1995. In plaintiff's work, commands can be inputted during the interval of four week days and one holiday from the start of the game on April 4, 1995 to April 9, 1995, but then the numerical value of a parameter cannot exceed a maximum of 124.5 (physical condition).

      In contrast, Blocks 1 -- 11 of the instant memory cards allow the numerical values of the nine parameters as at the night of April 9, 1995 to be changed, in block 1 for example, to
999 in physical condition, 999 in letters, 999 in science. 999 in arts, 999 in sports, 999 in sundries, 999 in figure, 999 in fight, 0 in stress.

     (ii) Modification of character figuration
       "Character figuration" means creating a character by conceiving a person and investing it with attributes such as personality, life history, environment, face and figure, way of thinking, moral sense, economic sense, all very important as fundamental factors in a film, a drama or a game soft.

       "Character figuration" is to be distinguished from a "story" in the sense of dynamic development of a plot with emphasis on a series of interesting events. <>  Such is their inseparable interrelation that not a single change in character figuration can be made without involving a change in the story.
 Now the instant game soft is a love simulation game, and the character figuration of the hero is a most important element that determines how the game story will develop, and even how much fun the player gets out of it.

     (iii)  The character figuration of the hero in terms of numerical values
        The character figuration of the hero in the instant game soft is expressed in terms of numerical values of the nine parameters: physical condition, letters, science, arts, sports, sundries, figure, fight, and stress.

        Expression of "a condition" in terms of combined numerical values is in mathematics a routine technique that goes by the name of "multidimensional quantity" or "quantification."  It is widely used besides "character figuration."

        A pupil's physical constitution, for example, may be expressed in terms of combined numerical values of height, weight, chest circumference, sitting height, ... , and the weather condition at a certain place and a certain time in terms of combined numerical values of temperature, air pressure, wind velocity, humidity, ... . The condition of a baseball player is known by his game record representing a combination of numerical values of the nine parameters[so many at bats, scores, hits, runs batted in, strikeouts, walks, sacrifices, steals and errors], which will reveal his condition as well as his individuality.

        This applies to the instant game soft, in which the combination of numerical values of the nine parameters shows its hero's condition and his individuality.  It thus functions as a characterization of the hero.

 From the above we may say that changing the numerical values of the nine parameters in the instant game soft is none other than changing the character figuration of its hero.

     (iv) The instant game soft is designed for the hero to play the game of three years' high school life in which he imprints his individuality on his inner side (status) and his outer side (getting along with girl students), and finally to be rewarded with an ending he merits according to the credit he has earned for his individuality thus imprinted.

        Now at the outset the hero as a starting high school student is credited with 100 in physical condition, 4 in letters, 40 in science, 40 in arts, 40 in sports, 32 in sundries, 60 in figure, 5 in fight, and 0 in stress. This means that at the start of the game the hero has no particular individuality, and that the way he will play the game has in it all latent possibilities of developing his individuality, in whatever direction it may be.

 But the hero as a high school freshman is rated, for instance, at 999 in all the parameters except 0 in stress by block 1 of the instant memory cards.  It means that he is transformed into an extraordinary student. His scholarship, for one, is such from the first that he will sit totally unprepared for the first term-end examination on July 10, 1995 and for all that he will emerge at the top of the list.

 We need hardly point out that such a modification is so seriously damaging as to bring to naught all the efforts the individual designers of the instant game exerted in determining the hero's individuality as stated above.

 Moreover, in the instant case the modification of the hero's character figuration will in its turn bring about serious modifications of other parts of the instant game soft.

   2  Modification of "game balance," an essential element of the "story" of the game soft
     (i) The proper game development of the instant game soft
        The game development of the instant game soft is designed for the hero to begin with the numerical values of the nine parameters indicative of his inner side and those of the three undisclosed parameters indicative of what girl students think of him, and to spend three years of high school life, contriving on the one hand to bring the values of open parameters up to certain figures while keeping an eye on balance, and on the other hand to bring the values of the undisclosed parameters to certain values, and only if he meets both requirements as stated below, the game comes to a happy ending in the form of a declaration of love won from the lips of a girl student like Shiori Fujisaki on the day of graduation.

 Here the three undisclosed parameters are heart's throbbing, friendliness and heartbreak whose numerical values are affected by factors such as frequency and quality of dates with Shiori Fujisaki and others, attitudes to school events (term-end examinations, school sports, cultural festivals etc.), health condition (neurosis, medical checks), company with a girl student on the way back from school, gifts presented, and factors for other girl students' estimation.

 To give a concrete illustration, the game is designed in such a way that the hero can win a confession of love from the lips of prime target Shiori Fujisaki when he has fulfilled the two requirements: (a) that, as to the nine open parameters, he get at least 130 in letters, science, arts, and sports, 120 in sundries, and 100 in figure and fight, and (b) that, as to the undisclosed parameters, he get at least 80 in heart's throbbing, at least 50 in friendliness, at most 50 in heartbreak, and at least 8 dates.

    (ii) The instant game soft has in it two inherent types of game balance:
      (l) Game balance in increasing the values of all the open parameters together                 The two requirements for winning the heart of prime target Shiori Fujisaki in the instant game, reflecting her high standard of an ideal man, are that he be at once a brilliant scholar and a good sportsman, and that he be a handsome man as wellAor, that  in concrete terms, that the above parameter values be attained.

 As a matter of fact, however, the way the game is designed is this: If one command is chosen, the value of a specific parameter does not go up alone, but the values of all the other parameters are affected and changed, the values of about one half of them being even abated. Choose, for instance, the command for the letters parameter to augment its value, and the values of physical condition, sports, figure, and fight will drop. Or choose the command for the sports parameter to lift its value, and the values of physical condition, letters, science, arts, and figure will fall.

        If, therefore, commands for studies (letters, science, and arts) only are chosen, the value of the sports parameter will go lower and lower, while a command for sports only is chosen, the values of studies will go down and down. Thus commands chosen have an adverse effect upon certain other parameters as it happens between studies (letters, science, and arts) and sports, between studies and figure, or between sports and figure. Especially a player aiming at winning the heart of Shiori Fujisaki will face a dilemma, because he must bring up all the parameters except stress. This is what we understand by game balance here (called game balance type A for the present purpose). The player must rack his brains to think out how to choose from among all the commands, keeping an eye on game balance type A.

    (2) Game balance in increasing the values of open parameters and undisclosed parameters together
        The instant game has in store a dilemma or an obstacle as stated below: Now a date with a girl student is an event most important in increasing the values of undisclosed parameters, but it is allowed only on holiday mornings to propose a date by phone or to have a date. It is no easy matter for a player to succeed in increasing the values of the nine open parameters as he likes, but he is relieved of this difficulty by choosing the command for letters and the like, because he can then earn four week days' credit. If he relies on this advantage by choosing letters or other studies on all holidays to lift the values of the nine open parameters efficiently, he will fall into a dilemma, for he will then miss opportunities for dates, a thing of equal importance. This is also what we understand here by game balance (called game balance type B for the present purpose).

 On holiday mornings, a player, mindful of game balance type B, must make up his mind which command to choose: a command for an open parameter, or a command for having or proposing date to enhance an undisclosed parameter.

        It is on holiday mornings only that a player can have or propose a date with a girl student, an important event to enhance an undisclosed parameter, but it is on holiday mornings, too, that he can most effectively choose a command for letters or other studies, though with this limitation that he cannot choose more than one command on one holiday morning by the rules of the instant game soft.  In these circumstances he will have no choice but to try to maintain a balance with an eye on the development of the game.

       (iii) Effects of the data in blocks l -- 11 of the instant memory cards upon the game balance in the instant game
        (l) For instance, block l of the instant memory cards credits the hero with 999 in all the nine parameters except 0 in stress right after entering high school (on April 9, l995). What does this mean to the game balance in the instant case? With regard to the values of the nine open parameters (requirement (a)), he has gone well over the required minimum of 130 in letters, science, arts, and sports, 120 in sundries, 100 in figure and fight, with no possibility of getting 999 lowered during three years except in extraordinary circumstances.  The maximum reduction of an average of -0.75 a week day is possible in sports by choosing a command for science, or in figure by choosing a command for repose. Suppose he does it all week days during the three years (801 days). In either case the maximum reduction in the value of the chosen parameter will be 999 -- 0.75 x 801 = 398.25, so that he need not be worried about this matter. He has only to concentrate upon fulfilling the conditions concerning the undisclosed parameters (requirement (b)).

 (a) As to game balance type A
    As seen above, the instant memory cards have done away with the very need to raise the values of the nine open parameters for the development of the game, and the fear, too, of being caught in a dilemma while attempting to increase those values. Game balance type A  is totally thwarted in its purpose.

        (b) As to game balance type B
           As stated above, a player then has only to concentrate on fulfilling the conditions concerning the undisclosed parameters, so that on holiday mornings he does not have to vacillate between two choices: a command for some open parameter or a command for some undisclosed parameter like one for having or proposing a date, so that game balance type B as originally devised is rendered wholly devoid of significance.

       (2) The above remark applies not only to block l of the instant memory cards, but also to blocks 2 -- 11. For instance, in order to win a declaration of love from Saiko Katagiri at the end of the game, a player must attain at least 120 in arts, and at least l00 in figure. Now suppose the data in block 4 are 999 in physical condition, 0 in letters, 0 in science, 999 in arts, 999 in sports, 999 in sundries, 999 in figure, 0 in fight. It is stated on the package of the instant memory cards, a player can play the game with the status fit for each individual character. The above data, therefore, more than fulfill the requirements of "at least 120 in arts and at least 100 in figure," and 999 in these two parameters will in practically no circumstances fall during three years (the reason  given above applies here as well), so that a player will have only to concentrate on the undisclosed parameters as in the case of block l.

      (iv) Conclusion
        The foregoing shows that with regard to Shiori Fujisaki and other girl students the required values of open parameters are already attained by blocks 1 -- 11 of the instant memory cards, with the evident result that the game balance of both type originally devised by plaintiff when creating the instant game soft has been utterly ruined; in other words, they have both been undeniably modified.

        The foregoing also shows that the "game balance" is literally balance in the development of a game and is indeed a key element of a game soft determinative of the fun the player will get out of it.

 Game balance is the individual game designers' device in expression as to the progress and structure of a game, and may be called a form of inner expression in the sense that it is not expression directly visible to the eye.

        As against game balance, the "story," a key entity as to the progress and structure of a film or a novel, and a determinative factor in the fun the player will get out of it, is a form of inner expression of a film or a novel.

 Then "game balance" may be characterized as an element of the "story" that forms the backbone of a game soft,  even a crucial element of the "story" proper to a game soft. There is no denying, therefore, that the "story" has been modified by the instant memory cards.

3  Modifications as to individual events
 Now let us turn to the modifications in the contents of the whole game soft work attributable to the modification of the character figuration of the hero, and we find the following "modifications visible to the eye."

      (i) Change of "the time of the first encounter with a girl student"
 The instant game soft work is designed to make different girl students appear before the hero with the progress of the game in such a way that when (but not until) his respective parameters attain certain values, a girl student corresponding to such values appears on the screen to encounter him. For instance, take the case of the girl student Mio Kisaragi. The player has a 1/3 probability of getting her on the screen by choosing the command for letters if his letters parameter is at 55 or more (if acquainted with no girl) or at 75 or more (if acquainted with one or more girls). In the instant game soft work, required denominations of parameters vary with the girl student, so that by no contrivance whatever can he encounter more than three girl students before May of the first year. Thus there is a certain latitude in game development originally allowed for changing "the time of the first encounter with a girl student."

 However, by block l of the instant memory cards, for example, the hero's status is changed to 999 in all parameters except stress as of April 9, 1995, so that he can get a girl student on the screen without so much as playing to raise the values of parameters. As a result,
he can encounter a maximum of six girl students by May of the first year. It follows then that game development as to "the time of the first encounter with a girl student" realized at least by block l of the instant memory cards is evidently a deviation from the original "latitude in game development."

 There is no denying, therefore, that block l of the instant memory cards has brought about a modification as to "the time of the first encounter with a girl student."

      (ii) Significance of the above modification
 "The first encounter with a girl student" is indeed one of the visible events in the sense that the girl student actually appears on the screen and speaks to the hero. Therefore, it is not an element of the "story" or a form of inner expression "invisible to the eye," but an element of an individual event or a form of outer expression "visible to the eye."

 "The time of the first encounter with a girl student" has significance to the contents of the instant game in that, but for this first encounter with the girl student, no subsequent dates will be possible, with the consequence that no requirements as to undisclosed parameters can be met. In this sense timing of the first encounter is important in the game designers' determining different parameters and different values for different girl students as, for instance, letters at 55 or more for Mio Kisaragi and science at 60 or more for Yuna Himoo, or determining that he cannot encounter more than three girl students before May of the first year (see above).

 But block l of the instant memory cards has made an encounter with any girl student instantly possible from May of the first year, thereby rendering inoperative the game designers' conditions for the first enter with a girl student. This is a serious modification, too.

4  Conclusion
 As demonstrated above, the data in blocks 1--11 have brought about modifications of the instant game soft work as to "the character figuration of the hero," "game balance" and "individual events."

[Blocks 12 &13 of the instant memory cards]
1  Modification of the character figuration of the hero
     (i) Change of the values of parameters as of February 22 and 25, 1998
 Blocks 12 & 13 of the instant memory cards contain the values of the nine parameters as of February 22 and 25 respectively.

        The values of the nine parameters in the instant game soft as of February 22 and 25 are changed by blocks 12 and 13 of the instant memory cards, -- for instance, by the latter as follows: 999 in physical condition, 998 in letters, 998 in science, 998 in arts, 997 in sports, 894 in sundries, 868 in figure, 987 in fight, 0 in stress.
 Suppose a freshman who sets 999 as a target point in the eight parameters other than stress in the instant game soft starts striving toward his goal on April 4, 1995 and continues doing so till the day of graduation, March l, 1998. How much can he achieve at most? Upon mathematical verification, it has been found that the utmost he can do will be 378 in physical condition, 0 in letters, 0 in science, 0 in arts, 999 in sports, 733 in sundries, 366 in figure, 815 in fight, 0 in stress. Evidently it is absolutely impossible to attain the above values in block 13 by a proper game development of the instant game soft.

 The same may be said of the changed values of parameters in block 12: 999 in physical condition, 998 in letters, 995 in science, 998 in arts, 998 in sports, 873 in sundries, 849 in figure, 973 in fight, 0 in stress.

        Hence it follows that the values of nine parameters as of February 22, 1998 (block l2) and as of February 25, 1998 (block 13) are evidently a deviation from the original "latitude in game development" as of the respective dates.

     (ii) Significance of the above modification (change of the character figuration)
 Any change of the values of the nine parameters is none other than a change of the character figuration of the hero in the instant game soft work.

 Moreover, in this case blocks 12 and 13 suddenly started the game only a week before graduation, i.e., on February 22 and 25, l998 respectively. This brings about serious modifications in other contents of the instant game soft, too.

2  As to starting the game on February 22 and 25, 1998, a week before graduation (cutting "the story")
 The story of the instant game soft is supposed to be for three whole years' high school life from entrance till graduation. The game designers have exerted their ingenuity in designing a game that would allow the player to enjoy various experiences all through that period of time. But blocks 12 and 13 of the instant memory cards skip over nearly all of "the story" to make it start abruptly a week before graduation. This is a deletion of "the part of the story covering the period from the beginning to a week before graduation" from the fundamental elements of "the story" originating with the game designers, and it is without doubt no trifling modification of the essential contents of the work.

 Thus it is a serious alteration of "the story" and at the same time an infringement of the right to preserve the integrity of a work just as is the act of starting with the last scene in
exhibiting (or broadcasting or videoizing) a film.

 Defendant, however, denies this by distinguishing a game soft from a film. The reason it advances is that a theater film has an invariably fixed story, while a simulation game like the one now under dispute has no fixed story, of which an important element is the player's own active participation and choice pregnant with an infinite variety of developments.

 But this is an utter mistake, for plaintiff is talking about the period of three years at high school in "the story" predetermined for the instant game soft, and the period of three years is absolutely fixed, and leaves no room for alteration that depends on the player's participation or choice. Admitting that the instant game soft has its own vast variety of developments, an absurd development of the gam that starts with an almost ending scene is fatal to the fun of playing the instant game, and was certainly the very last thing in the minds of the game designers."

3  About starting the game on February 22 and 25, 1998, a week before graduation (doing away with "interactiveness")

    (i)  "The traditional way of appreciating a work" such as a film, music, or a novel is characteristic of one-sidedness because the work moves one way only from the author to the appreciator (spectator or reader).  As against it, the new way of appreciating is both-sided or "interactive" in the sense that "the game soft makes progress with the player's inputting behavior and gets its concrete substance determined."  In other words, "interactiveness" in the way of appreciating a game soft work in the instant case is the appreciator (player)'s participation in such a way that (a) the game does not make progress without his choice, and that (b) the game gets orientation from what the player has chosen.

 From the standpoint of the author of the game soft, "interactiveness" in its appreciation may be defined not merely as the "both-sidedness" through the player's inputting behavior, but also its contents into which the structure of such "both-sidedness" is incorporated.

    (ii) The substance of "interactiveness" in the instant game soft
 In the instant game soft, there are only two kinds of commands for choice as follows:
      (a) "the day's behavior to be chosen on Sunday or holiday mornings (four alternatives: a. commands for raising the hero's parameters, b. commands involving use of the telephone, c. commands for dating, d. commands for club activities), and
      (b) "behavior during the next week's week days from tomorrow" to be chosen on Sunday or holiday nights (only commands for lifting the hero's parameters).
Unless the player chooses one or more commands, not a single day passes, nor comes March 1, 1998 when the fate of his pursuit of the goal is known; the orientation of the game's contents depends on his choice.

   (iii) How "interactiveness" and "the story" are interrelated
        The term "interactiveness" has so far been defined mainly from the point of view of the user such as the player, but from the point of view of the game designers, it is none other than their devices in expression as to the progress and structure of the game, in the sense that the choice of commands triggers the progress of the contents of the instant game, and that the way he chooses commands determines orientation for such contents individually and concretely. It is a key determinative factor in the fun of the game (the game designers work out actual contents of a game, always mindful of what the player will think and how he will react through the controller for inputting). As interactiveness thus always rests on concrete contents, their individualistic expression is given full play.  Here devices in expression, as distinct from characters, speech or music, are a form of inner expression not directly visible to the eye or audible to the ear.

  Therefore, "interactiveness" is a crucial element of "the story" of a game soft, like "the story" of a film or a drama, which is a fundamental concept as to its progress and structure, a key determinative factor in the fun of the game, and is a form of inner expression.

    (iv) Effects of blocks 12 and 13 of the instant memory cards upon "interactiveness"
 Starting the game on February 22 and 25, 1998, a week before graduation is after all doing away with the "interactiveness" designed in this case as a device in expression for the whole period of time from the start of the instant game to a week before graduation. Such an unauthorized act of deleting "interactiveness" as a device in the expression of a game soft is a "modification of the contents of a work" that constitutes an infringement of the right to preserve its integrity.

4  Conclusion
 The foregoing has established that the data in blocks 12 and 13 of the instant memory cards have brought about a "modification of the character figuration of the hero," a "modification of the story," a "modification of interactiveness" of the instant game soft work.
 

[Defendant's argument in this instance]

    I    Plaintiff's argument in this case seems to support the conclusion that the use of the instant memory cards disturbs the game balance and causes a deviation from "the predetermined latitude of the game development" in the game soft with the result that the right to preserve its integrity as a film work. But it is untenable under the Copyright Act as it is properly interpreted.

 In the final analysis plaintiff contends that, in a simulation game, too, a player may not go beyond the bounds subjectively set by the game designers and that the act of breaking the subjective bounds constitutes an infringement of the right to preserve the integrity of the game as a film work.

 Firstly, however, plaintiff totally overlooks the characteristics of a simulation game that a simulation game cannot come into being without a player's independent participation, conversely stated, that such a game is distinguished from a play film or a novel in that it is a special kind of work in which the development of the story, or the contents, are not completely fixed.

  Secondly, what plaintiff calls "the predetermined latitude of the game development" is stated nowhere in the program, still less on the package of the game or in the manual, so that a third party has no means of objectively knowing it. Such a thing is no doubt out of the question as an object of copyright protection. If the designer of a game intends not to allow a deviation from a limited latitude in inputting parameters, all there is for him to do is to so program it.

 Thirdly, plaintiff's argument is no less than the claim that not only a program itself, but also mere save data (mere parameters or figures) generated while executing a program should be recognized as copyrightable. There is no doubt that it will entail very unreasonable consequences. For instance, if newspaper articles or photographs are in the form of digital data, they should of course be accorded copyright protection just as in man-readable form.  But evidently we would be going too far if we extended game maker's copyright to mere save data (parameters) that have only incidental meaning in the execution of a specific program.

    II   We dispute the characterization of the instant game soft as a film work.
        To qualify as a film work a game soft must fulfill three requirements: (l) that it be expressed by a process producing visual or audio-visual effects analogous to those of a film, (2)that it be fixed in some material, (3) that it be a work of authorship. A regular film is a product of editing (selecting and combining) a large number of short-time series of similar images made in advance.  A film so produced is neither a compilation or a collective work into which those series of images are incorporated, nor a work of joint authorship or under joint copyright ownership of those who creatively participated in the making of the respective series of images.
Those who have creatively participated in the making of a film as a whole are the only authors of a "film work."

        As seen above,  the most important and essential creative act in a film work is the editorial act of which cutting and montaging are typical. There it is decided which short series of images out of many  should be presented, in what positions, and in what order, and so forth. Even if two films have some of those short series of images in common as material, they are two distinct film works, so long as they can be distinguished by the way the materials are selected, combined, or ordered.

        For a film work to qualify as such its expression in a creative way must be by a "process producing visual or audio-visual effects analogous to those of a film" must be "fixed in some material."

 "Fixed in some material" means "the state in which a work exists preserving its integrity by being  fastened in some manner to a material object and is capable of reproducing its expression." Under the Copyright Act, * 2 (3) as it is read straightforward, a "film work" means not components or gathered groups of original works, but an expression itself as a "film work," that is, certain series of images in which thoughts or sentiments are expressed in a creative way. The state in which a "film work" "exists preserving its integrity by being fastened in some manner to a material object" means that groups of series of images presented in fact as they are selected, combined and ordered are recorded in a material object,  and it can be said to be "capable of reproducing its expression," only when that material object, if reproduced in a certain way, can express certain groups of series of images in certain combinations in certain order. A film, videotape, videodisk etc. that on a duplicating machine will always reproduce identical successive images are in a state as just described above.

 The most important creative act in the production of a film work is editing, and its essential characteristic of its form of expression as such stands out when it is "fixed in some material."

 The instant game soft is a simulation game, and the order and the combinations in which certain successive images appear naturally vary with the operation of the player. It is practically impossible to present certain successive images in certain combinations and in certain order, because the game depends on random digits in some parts. In the case of the instant game soft, therefore, it does not meet the requirement that an expression made in a creative way be fixed in some materal.

Pt 3  Discussion and opinion of this court
  I Characterization of the instant game soft as a work
   1 Plaintiff is a corporation that is mainly engaged in the manufacture and sale of computer game softs and other amusement apparatuses (an undisputed fact). On its initiative it had a computer game soft named "Tokimeki (heart's throbbing) Memorial" (the instant game soft) produced by its employees in the course of their duties and on May 27, 1994 it put it on the market as a game soft for use on a game machine "PC Engine" in the name of plaintiff as author. Afterwards it released a version for the game machine "Play Station" under the title of "Tokimeki Memorial -- forever with you --" on October 13, 1995, and a version for the game machine "Superfamicon" under the title of "Tokimeki Memorial-- under the legendary tree --" on February 9, 1996 (A1 (1)--(2), gist of the whole argument).

 There is no dispute between the parties that plaintiff has the author's moral (personal) rights and copyright to the instant game soft (except as to its contents).

     2 The contents of the instant game soft are a love simulation game in which the player of the game (hereinafter simply the player), acting in the role of a student (the hero) of the fictitious "Glittering High School," spends three years of high school life through various incidents and events to gain an ability that makes him a good match for a girl student he adores and chooses as his target before the others he is to meet, with the goal of a happy ending in the form of her confession of love under the legendary tree on the day of graduation.

 In the instant game soft, whether the hero can reach a happy ending by winning a confession of love from the lips of the girl student he aspires to on the day of graduation, or his three years' high school life closes with a bad ending with no such confession from any girl student depends on how the hero acts during that period of time.  Even if, therefore, he first succeeds in arriving at the happy ending, he can next time enjoy an entirely different game development by behaving otherwise (by changing his approaches to studies, sports, events, and the like), and so he may get a confession of love from a different girl student (Shiori Fujisaki and ten other girls' figuration varies in character, figure, taste or type of a man they like, and so on), or he may get one from the same girl student but by behaving otherwise.

 The instant game soft, if put into execution, will show the following game development (A11, KA1,2):

        (i) Introduction (Beginning)
    It begins by inputting the name of the player of the game (family name, first name, nickname), his birthday and blood type. The ability of the player is expressed in numerical values as to the nine elements: physical condition, letters, science, arts, sports, sundries, figure, fight, and stress (these numerical values hereinafter called open parameters), whose values at the start (on April 4, 1995) are set at 100 in physical condition, 40 in letters, 40 in science, 40 in arts, 40 in sports, 32 in sundries, 60 in figure, 5 in fight, and 0 in stress. And initial values are also set in three "undisclosed parameters" -- heart's throbbing, friendliness and heartbreak -- which indicate how the hero is thought of by girl students. The icons arranged by 3 lines x 5 rows stand for commands. The player chooses a command for letters to enhance his ability for letters,  and a command for a telephone to propose a date with a girl student.

 (ii) Progress (Middle)
          (1) With the goal of winning a confession of love from a s girl student he adores, the player proceeds to spend his three years' high school life in behaving as follows:
          (a) He plays in cycles of one week; during week days he chooses from among the commands for studies (letters, science, arts), sports, club activities, dandyism, recreation, relaxation so that he may enhance his own ability enough to be a good match for the girl student he adores. As a result the open parameters set at the start will rise (but the parameter for stress will fall by choosing a command for relaxation, and other parameters will also change. For instance, if the command for studies is chosen, the parameters for studies will rise, but the one for stress will also rise. If the command for relaxation is chosen, the one for stress will fall, and the one for figure will also fall.

          (b) Also in cycles of one week, he chooses on holidays a command for a telephone for having or proposing a date or for a command in the (a) group.  When a date is chosen, he may have occasion to be spoken to and answer the girl student or otherwise to decide how to to cat, his choice then will affect her estimation of him (values of undisclosed parameters).

  Girl students' estimation will be affected by his regular attendance at school events as well (such as examinations, school sports, cultural festivals). This will also happen depending what the hero chooses to do on occasions such as when he falls into company with a girl student on the way back from school on a week day or when he gives her a birthday present.

 (c) He is not always successful in the choice of commands. He sometimes fails. He is not always in good health; he sometimes falls sick or gets injured. He may become neurotic or may have an accident. All these happenings affect his parameters.

 (2) The instant game is supposed to last three years, so that its long play time has many breaks, so that the player may enjoy one game for several days. The state of the game when it is suspended can be preserved in numerical values. Preservation is made possible by the save command on a memory card available on the market (different from the instant memory cards). By reading in the numerical values so preserved on the memory card, the suspended game can be continued from the point where it was suspended.

 The player can always recognize his open parameters because they appear on the upper part of the screen as "the status of the player." As to the girl students' estimation of him (his undisclosed parameters), he can get information by calling his good friend Yoshio Saotome (brother of Yumi Saotome. He is so designed as to know all about her fellow girl students). So he has means of knowing their estimation (in seven grades) including whether or not his target girl is now cross with him.

       (iii) End
          At the end of playing as in (ii), it is decided whether he can win a confession of love from the girl student he adores.  Relevant factors considered are (a) whether his open parameters have attained the numerical values that deserve the target girl, (b) Whether the frequency and quality of his dates with her, his attitudes to school events (examinations, school sports, cultural festivals), health condition (neurosis, medical checks), his company with her on the way back from school, and presents he gave her, and other girl students' estimation of him (undisclosed parameters) have attained certain numerical values. If all these factors are considered altogether, and found to meet the requirements (a) and (b), he can close the game with a happy ending by winning a confession of love, and if not, he will go home with a good friend.

  3 The framework of the story in the instant game soft
 As seen above, the instant game soft is framed in terms of time to start on the day of entrance into the high school (April 4, 1995), go through various happenings during three years and end on the day of graduation (March 1, 1998), and the story is designed to develop multifariously within that temporal framework. For the nine elements of the ability of  the player (the hero) nine initial numerical values are set, together with commands that he can choose on week days and holidays.  Those commands are set in such a manner that choice of a command results in the rise or fall of a parameter which, however, is linked with the reverse movement of another parameter (doesn't  this smell of the lamp?). Out of such features he gets fun and difficulty in the game management (A 22).

 In the instant game soft the eleven girl students appear before the hero on the screen, and it depends on the numerical values he has attained which one of them he can get a confession of love from. For example, in the case of the prime target girl Shiori Fujisaski, (a) as to the nine parameters, 130 or more in letters, science, arts, sports, 120 or more in sundries, 100 in figure, fight, 50 or less in stress, (b) as to the undisclosed parameters, 80 or more in heart's throbbing, 50 or more in friendliness,  50 or less in heartbreak, and not less than 8 dates. The player, therefore, starting with commonplace initial ability values, has to manage the game without losing a balance between rising and falling parameters with the object of bringing those values up to the highest level of credit for a high school boy at once brilliant in studies and sports and handsome in figure.

 If some other girl student is chosen as a target, the hero must attain the open and undisclosed parameters set according to her specific character.

        Thus in the instant game soft the story lays main emphasis on the endeavors of the hero, starting with initial ability values, tries to improve them with the goal of winning a confession of the prime target girl student, encountering during that process with other girl students depending upon how much credit he has earned (A21, 22, 30).

  4  The Structure of the instant game soft
 In the instant game soft, which contains a simulation game, images are presented on the monitor, sounds are emitted from the speaker, scenes appear as the game develops according to the program stored on a CD-ROM in response to the commands chosen by the player.  All successive scenes proceed from beginning to end solely as the player chooses. It is the function of the computer program to read the contents of commands selected by the player, and to present scenes accordingly. In so executing those commands, it moves up or down the nine open and three undisclosed parameters as originally designed in it (such movement cannot be specified, because they depend on random sampling).  Not only images (characters and background) and sounds in each scene, but also figuration of characters and conditions for choosing commands are all stored on a CD-ROM as data.

  5  The instant game soft as a work
    (i) As stated above, since the instant game soft consists of a program and data, the essential elements of a simulating game such as images and sounds are all stored as data.

 A "film work" under the Copyright Act, §10 (1) #7, includes a work expressed by a process producing visual or audio-visual effects analogous to those of a film and fixed in some material (§2 (3)). The instant game soft, by using a reproduction machine, can be made to develop a certain story on the monitor by presenting changing images (if not continuous) in each scene and making characters speak words befitting to the scene. Therefore, the instant game soft is a "film" work" within the meaning of the Act (The program and data of the instant game soft are all stored on a CD-ROM. We cannot deny that it also meets the requirement that it be "fixed in some material").

 The program of the instant game soft can also be deemed to include a combination of instructions to the computer (gist of the whole argument). It may also qualify as a "program work" under the Copyright Act, §10 (1) #9.

 In the instant game soft, images and sounds preserved in the data are read and reproduced by the program, and then the game can be developed only by the independent participation of the player.  Because of this the instant game soft is not so much a work in which a "film work" and a "program work" simply coexist, as a work of complex character into which both works merge, which we may properly characterize as "game images."

    (ii) The instant game soft is so programmed that girl students who appear on the monitor and the hero (the player) who does no appear, but acts the key role in the development of the game cultivate a mutual friendship during their three years' high school life, and that the hero endeavors to improve his ability in studies, sports, figure and the like towards the goal of getting a confession of love from a girl student.

 As a consequence, the figure and expression of the girl students can be seen on the screen of the monitor, while that is impossible with the hero, but he is always spoken to by the girls on the screen. The story is developed by their conversation and association. Although the girls' speech and behavior toward him are fixed and limited to several patterns, the hero has variable initial ability values.  Assigned to him right after his high school entrance, those values, are designed, as are also the values of the undisclosed parameters, to vary diversely according as he chooses commands on weekdays and holidays in an effort to enhance his ability values.

 As seen above, the girl students who appear on the monitor get their character formed through their respective figure and expression projected on the screen, while the hero, instead of such character formation, gets his character configuration right after his entrance as, a common medium high school boy expressed in terms of initial ability values: 100 in physical condition, 40 in letters, 40 in science, 40 in arts, 40 in sports, 32 in sundries, 60 in figure, 5 in fight, 0 in stress.

 The characters such as Shiori Fujisaki and other girl students, therefore, should properly be protected by copyright; so should also the hero, for he is a character whose figuration is expressed in terms of ability values, and as such he is a major constituent element of the instant work.

      (iii) Plaintiff contends that the "characteristic contents of the instant game soft," i. e., "game balance" and "interactiveness," should be placed within the scope of copyright protection as works.

       (1) Plaintiff argues that this "game balance" is the very key factor that determines the fun of the game soft, that it is a device in the designers' expression as to the progress and structure of the game, and that it is a form of inner expression in the sense that it is a device in expression not directly visible to the eye.

       In rebutting this argument, defendant asserts that plaintiff totally overlooks the specific character, classification and contents of a simulation game work. What plaintiff calls "predetermined latitude in game development" cannot be objectively recognized by a third person, so that it is not susceptible of copyright protection,  Plaintiff's contention is unreasonable in that it goes so far as to seek protection for mere save data incidentally generated in the execution of a program.

      (2) Plaintiff seems to mean by "game balance" that in the instant game soft which is so programmed as to link the rise of values of certain open parameters with the fall of rise or fall of the values of other parameters, the player has to choose commands always mindful of a balance among the values of studies, sports, etc. as well as linkage between open and undisclosed parameters, or that the development of the game is programmed in such a manner.

 Such balance is realized by the program of the instant game soft which reads the contents of commands chosen by the player and adds to the hero's parameter values certain predetermined plus/minus values in accordance with instructions so given.

 Such "game balance" in itself is a design of the game, an idea or design of the game which the designers of the instant game had when they formulated diverse story developments of the game from beginning to end and made the player's command choice complicated and difficult so that his intellectual activities might be fun.  Admitting it is intellectually the most  painstaking part of the work to its designers, it is not in itself a work within the meaning of the Copyright Act and is not a proper object of its protection as such. In the instant case a proper object of copy right protection as a product in which thoughts or sentiments are expressed in a creative way is the story (a virtual love affair) (designed to be multifarious but limited) and its images stored in the instant game soft.

        What plaintiff calls "interactiveness" is not quite a clear concept.  It asserts that it refers to the aspect of the game that the game does not progress without the player's participation, and that the concrete progress and development by his choice is dialogic and bilateral. But granting the game has such a character, the progress and development of the game is nothing but selections from the contents stored in advance in the program or data. Such "interactiveness" is no more than an abstract technical concept of the way of operation peculiar to a simulation game, or of relations between operation and response.  "Interactiveness" in itself cannot be characterized as a creative expression of thoughts or sentiments of its designers as to the development of the game and its characters.

      (3) However, the program of the instant game soft is structured in such a way that, on the basis of certain ability values of the hero originally set and fixed, the player develops the story by creatively varying and cumulating such values of the ability elements corresponding to the actions (commands) he chooses. Such save data generated and accumulated by the player, therefore, are not mere numerical values independent and clearly distinguishable from the program, but its inseparable elements for varying the values originally set by its maker
and expressing game development accordingly.

 Because variation of the ability parameter values in response to chosen commands, to say nothing of original setting of such values, is thus an essential constituent element of the instant game soft, its modification and mutilation should properly be condemned as a modification of the contents of its expression and an impairment of the right to preserve the integrity of the instant game soft work.

II  Modification by the instant memory cards
  1 Contents of the instant memory cards
 Blocks (or data memory units) 1--13 of the instant memory cards imported and sold in Japan have in store nine parameters for use as data in the instant game soft. A player, in executing the program of the instant game soft,  can use the data in any block of the memory cards he chooses (the block relating to the girl student whose confession of love he wishes to get) by reading them into the hardware of the game machine.

 2  Change of the game development by using the instant memory cards
 Evidence (A6 (1-2), KA1-3) and the gist of the whole argument show that the game development of the instant game soft is changed by the use of the instant memory cards as follows:

  (i) If the data in blocks l -- 11 of the instant memory cards are used, the original values of the nine parameters set at 100 in physical condition, 40 in letters, 40 in science, 40 in arts, 40 in sports, 32 in sundries, 60 in figure, 5 in fight, and 0 in stress as of April 5, 1995, the day of high school entrance are changed in less than a week after that, or on April 9, 1995, for instance, to 999 in all parameters except 0 in stress in block l giving the status for playing with Shiori Fujisaki as a target, or to 99 in physical condition, 0 in letters, 999 in science, 0 in arts, 0 in sports, 0 in sundries, 999 in figure, 0 in fight, 0 in stress in block 2 giving the status for playing with Yuna Himoo as a target.

  (ii) If the data in block 12 -- 13 of the instant memory cards are used, the starting time of the game jumps to February 22, 1998 (block 12) or February 25, 1998 (block 13) just before the graduation (March l, 1998), and the nine parameters at that time are, in block 12 giving the data "just before the ending" relative to Rei Ijuin, 999 in physical condition, 998 in letters, 995 in science, 998 in arts, 998 in sports, 873 in sundries, 849 in figure, 973 in fight, 0 in stress, and in block 13 giving the data "just before the ending" relative to Shiori Fujisaki 999 in physical condition, 998 in letters, 998 in science, 998 in arts, 997 in sports, 894 in sundries, 868 in figure, 987 in fight, 0 in stress. In addition, those blocks have in store data helpful in attaining required numerical values of undisclosed parameters with regard to those things the player need to know to win a confession of love from such a prime target girl students as Rei Ijuin or Shiori Fujisaki, such as the frequency and quality of dates, attitudes toward school events (examinations, school sports, cultural festivals etc.), health condition (neurosis, medical checks), company with a girl student on the way back from school, presents to her, other girl students' evaluation.  If he plays properly during the last one week, he is sure to win a confession of love of the target girl student he aspires to, be it Rei Ijuin or Shiori Fujisaki, although such data are not shown on the screen and invisible to the eye).

  (iii) As stated above, however, in the proper game development of the instant game soft, the originally set values are low, and besides the nine parameters are designed to make link motions such as the rise of one parameter linked with the fall of another. As a result, even if the player spends all weekdays and holidays in choosing the best commands with success in all of them, and always keeps in good health and free from injury, neurosis or any other disease, thereby succeeding in lifting the chosen parameters most efficiently, the utmost he can do will be to bring a small number of specific parameters only up to the highest value of 999, while he fails in bringing many others to a figure over 900 or even close to 900 at the same time (A30, KA6).

 Bringing most of the nine parameters to high values is only possible when, as stated in (i) and (ii), external data stored in the instant memory cards are written into the RAM of the game machine. The player is never able to achieve it by his own independent operation.

 3  Change of the game development and modification of the instant game soft
  (i) Variation of character figuration and the consequent modification of the "story"
     As already stated, the character figuration of the hero (the player) as well as that of Shiori Fujisaki and the other girl students is an element that plays an important part in the development of the story.

      If the instant memory cards are used, for instance, credit the hero with such high values as 999 in all the open parameters except 0 in stress right after high school entrance in block l giving the status for playing with Shiori Fujisaki as the target, and, as to blocks 12 and 13,  such high values as 999 in physical constitution, 998 in letters, 995 in science, 998 in arts, 998 in sports, 873 in sundries, 849 in figure, 973 in fight, 0 in stress as data relative to Rei Ijuin right after high school entrance (block 12), and 999 in physical condition, 998 in letters, 998 in science, 998 in arts, 997 in sports, 894 in sundries. 868 in figure, 987 in fight, 0 in stress as data relative to Shiori Fujisaki (block 13|.  The image represented by such high values is one of a high school boy of outstanding ability, preeminent in scholarship and sportsmanship, highly talented as an artist, and superbly handsome,
 The image of the hero in the instant game soft in the contemplation of its maker is a common and ordinary high school boy right after entrance, who makes the utmost efforts and
by a certain point of time before graduation develops an ability sufficient to attain high values only in a small number of specific fields. There is no denying, therefore, that such an image of the hero is modified  by the use of the instant memory cards.

 Furthermore in the instant game soft as stated above, the hero, on the basis of the originally set low ability values, chooses commands so as to attain the highest values possible at each point of time, and goes on developing the story under this limitation. Replacement of those ability values of the hero by far higher values at the very start, as in the change of "the time for the first encounter with a girl student," renders ineffective the values of commands inputted by the player in the course of story development and causes such story development to go beyond the originally set bounds. Thus modification of the hero's image does lead in its turn to the modification of the story.

   (ii) Change of "the time for the first encounter with a girl student"
      The instant game soft is designed in such a way that the story starts with low ability values of the hero and that a girl student appears only when his open parameters attain certain values that vary with the girl students.  So the story development may be said to suppose that no girl student appears until his ability attains certain values.

 As against this, blocks l -- 11 of the instant memory cards replaces the hero's ability values right after high school entrance by far higher values, with the result that girl students make an untimely appearance right after the start. In this point there is a glaring modification of the story development.

  (iii) Cutting the "story"
        Plaintiff contends that blocks 12 -- 13 almost entirely cut the "story" that is supposed to be developed throughout three years' high school life, and abruptly start it a week before graduation, and that it is nothing short of a serious modification of the "story," which is the essential contents of the game soft in the contemplation of its maker.

 It is plaintiff's contention that striking of the whole process in which the hero, starting with the original values set right after high school entrance, gradually grows during a span of three years amounts to a modification of the story.

 But replacement of the hero's ability values by high values beyond proper bounds only a week before graduation by means of blocks 12 --13 is none other than a modification of character figuration, which brings with it a modification of later story development just as is the case with blocks 1 --11.

  Therefore, what is modified is the part of later development that follows replacement of values, not the part of development that precedes it.

  (iv) Plaintiff also complains of modification of "game balance" and "interactiveness," but these are aspects of the simulation game as it is designed, not works in themselves as stated above. Even granting that these have been modified, such modification in itself does not constitute an infringement of copyright. Plaintiff's argument is untenable.

  (v) Defendant argues that, since in a simulation game no story is developed until the player participates, and no latitude in development is fixed, nor can it be recognized by a third person, replacement of the hero's ability values by higher values by means of the instant memory cards does not modify the story of the instant game soft.

 Defendant is indeed right in arguing that the instant game soft is to be distinguished from an ordinary verbal work or a film work with a fixed story within it, in that no game is developed until the player participates, or the story is multifariously developed according to his choice.

        But as stated above, since in the instant game soft the story starts on the basis of specified number of characters (mainly girl students) and conditions for their appearance on the screen, and also of the specified original ability values of the hero, the story certainly has a fixed beginning, and afterwards is concretely developed according to variation of the hero's ability values and of the undisclosed parameters related to girl students. Admitting that the story allows some latitude, there is no denying that it is none the less developed within certain scope under certain conditions.

 Such being the case, replacement of the hero's ability values by high values beyond proper bounds, at whatever point of time it may be made during high school life, will automatically change the conditions of development accordingly and present a peculiar story development independent of the original conditions. This certainly amounts to a modification of the story.

       Because playing the instant game soft takes many hours, a player is allowed to use memory cards obtainable on the market for the purpose of temporarily preserving game data accumulated by his game operation, and to write such data preserved in the memory cards into the play station to continue the suspended game.

 But such data preserved in the memory cards obtainable on the market are limited to results of game development within proper bounds as contemplated by the maker of the instant game soft, i.e., data generated by game development from the start.  It is not allowed to write in data not generated by the instant game, or to omit data generated by game operation from the start.

 Allowed use of memory cards obtainable on the market is limited as described above, so that it does not follow that the instant memory cards cross the line of permissibility.

        It may be added that  the latitude in game development as contemplated by the game maker, even it is not objectively recognizable to a third person, does not prevent copyright from attaching to the instant game soft, or justify the production of the instant memory cards. Nor does it make sufficient reason to make them permissible that their use keeps the program going in good condition without coming to a standstill or going suddenly out of control.

        Additionally, although the program of the instant game soft has no built-in check routine against reading in values higher than a certain figure, that does not affect the validity of the right to preserve the integrity of the instant work.

 III  Infringer upon the instant copyright
 To execute the program of the instant game soft using the instant game cards constitutes an infringement of the right to preserve the integrity of the instant game soft as a work, so that an individual player is no doubt a performer of such action.  Evidently, however, the maker of the instant memory cards is an active and intending contributor to such action, and so with regard to the modification of the instant game soft through the use of the instant memory cards, he is an infringer through those players upon the right to preserve the integrity of the instant work and he is liable for his customers' use of the instant memory cards, because we may presume they have played the instant game using the instant memory cards. Defendant who imported and sold such cards cannot escape liability for violating the integrity right under Copyright Act, §113 (1) #1, #2.

 IV Damage sustained by plaintiff
 Defendant began about December 1995 to import the instant memory cards and sell them in Japan (an undisputed fact). It is shown by evidence (A8, 9 (1)) that defendant imported a total of 700 units (\1260 per unit) and actually sold 522 units(\2980 per unit), but because the instant memory cards proved partly unworkable, it soon stopped import and sale, and abandoned what was left in stock.

 It is our finding as stated above that the instant memory cards were instrumental in violating plaintiff's right to preserve the integrity of their work. All circumstances taken into consideration, such as the total number of sold units, the profit from such sale, the contents and nature of the instant memory cards, the mode of violation etc., the damage may properly estimated at \1,000,000.
 It may be added that in view of the substance and degree of the violation among others, we do not find it necessary to order an a apology to be published in newspapers as a measure to restore plaintiff's reputation.

 With regard to the infringed right of reproduction of the instant game soft we quote that part of the decision of the court below which deals with the infringed right of reproduction (p. ll., line 3 -- p.12, line 2, p. 58, line 9 -- p. 60, line 7).

Pt 4  Conclusion
 Hence it follows that appellee by reason of its infringement of the right to preserve the integrity of the instant game soft and of the right of its reproduction is liable to pay \1,146,000
plus an interest of 5 per cent per annum from December 27, 1996 to the day of full payment, so that appellant is entitled to recover within this limit.

 Accordingly, the court decides as in the formal judgment upon modifying the judgment of the court below.

          (Oral proceedings closed on December 16, 1998)

                         Osaka High Court, Civil Bench 8
                                   Presiding Judge  Judge Shigeo KOBAYASHI
                                                  Judge Takuo OBARA
                                                  Judge Yozo YAMADA

                      *        *        *
           The above is the original.
  April 27. 1999
                       Osaka High Court, Civil Bench 8
                                    Clerk of the Court  Nobuyuki HIRAI