1. The defendants will not publish or distribute the book described in
the appendix.
2. The defendants will abandon the book described in part one of this Order.
3. The defendants will bear the costs of this litigation.
I) RESULT SOUGHT BY THE PARTIES
1. Gist of the Claims
Same as the Order.
2. Defense to the Gist of the Claims
Rejects all of the plaintiff's claims relating to the defendants.
Costs of the litigation should be borne by the plaintiff.
II) ALLEGATIONS OF THE PARTIES
1. Grounds for Claims
(1) The plaintiff is a company organized under the laws of the American
State of Washington, with its principle business being the development,
production, and selling of software used in personal computers.
(2) The plaintiff is the copyright owner of the work described in the appendix
(hereinafter referred to as "work at issue").
The work at issue was produced and marketed in the manner described below
(i) The plaintiff was asked on April 10,1979 by the Nihon Electric Company(here
in after referred to as "NEC")to develop a BASlC interpreter
program for use on the PC-8001,and the plaintiff produced the program that
is the work at issue.
(ii) The work at issue was developed,requiring about eight months, by technical
people of the plaintiff,other than its officer William H. Gates,as part
of their employment.
The copyright notice of the copyright holder,"Copyright 1979 (c)
by Microsoft," was programmed to appear on the display when the program
is executing.
(iii) The plaintiff recorded the above-mentioned work at issue it had developed
on floppy disks and delivered it to NEC,which reproduced it in ROM and
sells it as incorporated into the PO-8001 personal computer (hereinafter
referred to as the "personal computer at issue").
(iv) The plaintiff has not publicly sold or distributed the work at issue
in the United States.
As discussed above,because the work at issue is based on the original ideas
of the plaintiff,was created in the course of employment by persons engaged
in the plaintiff's business,and was made public under the name of the plaintiff,the
plaintiff can be said to own the copyright in it.
(3) As alleged in the preceding paragraph,the works at issue are protected
by copyright law in Japan under Article 6(2) and (3)of the Copyright Law.
(4) The work at issue is essentially as summarized below.
Specifically,the work at issue is a source program for the BASIC interpreter
which is expressed in a symbolic language(assembly language) and incorporated
into the personal computer at issue,and this program is an operating system
which interprets commands or programs in the BASlC language which are input
into the smal1-scale microprocessor-based computer system that is the personal
computer at issue, and which translates word for word instructions to control
the microprocessor and other information.
Moreover, the work at issue has been translated into binary electronic
signals (binary code) which the microprocessor can understand and was copied
into and stored in the ROM which forms the computer system memory of the
personal computer at issue (this program which has been translated into
machine language is hereinafter referred to as the "object program
at issue").
(5) The work at issue, as discussed below, is within the scope of copyrightability
under the copyright law.
(i) In general, computer programs are expressions in the form of combinations
of instructions with the purpose of causing a computer to function and
achieve a particular result, with these instructions being produced by
combining various programming language commands and other information.
Moreover, programs are expressions of the advanced scientific thinking
of the program's creator and have individual characteristics, and therefore
fall within the purview of Article 2(1)(i) of the Copyright Law, which
reads "thoughts which are expressed in a creative way, and fall within
the scientific domain," and also within the purview of Article 10
(1)(i), which reads "other literary works."
(ii)With regard to the work at issue, it provides the ability to easily
operate the personal computer at issue in dialogue style using the BASIC
language, and is designed to process BASIC commands or programs as written
and output the result desired by the person who input those commands or
programs.
The work at issue was written using the symbolic language (assembly language)
of the Z-80 microprocessor made by the American company Zilog, the microprocessor
which is used in the central processing unit (CPU) of the personal computer
at issue, and was produced by combining commands and other information
in that language in order to match the hardware architecture of the personal
computer at issue and to fully utilize its capabilities. Consequently,
the overall structure of the program, the structure of each routine, and
the combining of the commands and other information at each address were
created by calling upon the high degree of knowledge of the program's creator
regarding computers and programming languages, and the work at issue can
therefore be regarded as a literary work within the scientific domain.
(iii)The work at issue has a total of 229 routines (sets of instructions
to execute a particular function), and from those a module called COINIT
(a subroutine to initialize the cassette interface) from a routine called
the CSAVE routine (which is a set of instructions to save onto cassette
tape a program which is in the computer's memory) will be taken as a specific
example. When the contents of each instruction are analyzed, and the work
at issue explained as the creative expression of thoughts, we have the
following.
(The address number, assembly language statement, and its substance are
described in that order.)
(1) IEC0-1EC2 CALL L0C46 (COINIT)
Call the routine COINIT which begins at location 0C46.
(2) 0C46-0C48 CALL LF1 B9 (HOOK27)
Call HOOK27 at location F1B9. At that location, there is only an ordinary
RET (return) instruction, so control moves to the next address, 0C49, without
doing any operation.
Location F1B9 is part of RAM, and because RAM can be freely modified, by
putting this CALLnn instruction at strategic points in ROM one can effectively
alter ROM simply by altering the contents of the RAM location called.
(3) 0C49-0C4B LD A,(LEA66) (PORT30)
Transfer the data from l/O port 30H at location EA66 to the A register
(accumulator). The six bits from bit 0 to bit 5 at l/O 30H are used.
By setting the bit corresponding to l/O port 30H to 1 or 0, and then outputting
it, one can cause the output hardware to take the appropriate action desired
by the operator.
(4) 0C4C-0C4D AND 0FH
The logical product of each bit (a 1 results only if both are 1 ) of the
contents of register A and the numerical value 0FH is taken, and the result
is stored in register A.
The logical effect of AND 0FH is to set the top four bits to zero, and
the practical effect is to change the data in register A in order to use
the cassette interface.
(5) 0C4E-0C4F OR 0CH
The logical sum of each bit (a 1 results if either is 1 ) of the contents
of register A and the numerical value 0CH is taken, and the result is stored
in register A.
The logical effect of OR 0CH {N.B. the original has typographical error
of 0FH} is to set bit 3 and bit 2 to 1 , and the practical effect is to
change the contents of register A to output a Motor On and space signal
(a signal to indicate the beginning of the tape recording).
(6) 0C50-0052 CALL L0C38 (SET30H)
Call location 0C38 (SET30H).
(7) 0C38-0C3A LD (LEA66),A
LD (PORT30),A
Store the contents of register A in location EA66. By writing the contents
of register A in location EA66, the current status of I/O port 30H can
be obtained by other subroutines in ROM as well.
(8) 0C3B-0030 OUT (30H),A
Output the contents of register A to I/O port 30H. Because the contents
of register A have been set to 000011 xx by steps four and five, the cassette
interface has been selected, the motor relay has been switched on, and
the integrated circuit incorporated in I/O port 30H to output the space
feeder has been activated.
(9) 0C3D RET
The RET (return) instruction causes a return to location 0C53.
(10) 0C53-0C55 CALL L0D14 (RE8251 )
Calls location 0D14 (RE8251 ). The effect of this is to initialize the
LSI chip called 8251 used in the cassette interface.
(11) 0D14-0D15 LD A,0EH
The 8251 is a communications interface which changes parallel data in the
CPU to serial data, and serial data to parallel data. When using the 8251
, the 8251 must be reset in order to activate it, and the mode word and
command word must then be written into the control word register of the
8251. Whenever the 8251 is to be reset by a program, because it is not
known whether the 8251 control word input should be treated as setting
the mode or the command, dummy data is sent at least once through the control
word register, and the 8251 is reset during the next set-command cycle.
Bit 6 must be zero in this dummy data.
In this step, the dummy data 0EH is stored in register A through the LD
A,0EH {N.B. the original has the typographical error of 0FH} command.
(12) 0D16-0D17 OUT (21H),A
The contents of register A (dummy data) are output into I/O port 21 H (the
8251's control word register).
(13) 0D18-0D19 LD A,40H
The contents of register A are set to 40H. The value 40H is the reset value
for the 8251 .
(14) 0DIA-0DIB OUT (21 H),A
Output the contents of register A (the reset value 40H) to I/O port 21
H, and reset the 8251 .
(15) 0D1C RET
The RET (return) instruction causes a return to location 0C56.
(16) 0C56-0C57 LD A,L00CE (0CEH)
The contents of register A are set to the numerical value 0CEH. As mentioned
above, because the information read into the control word register immediately
after the 8251 is reset is treated as a mode word, the data to set the
mode must first be stored in a register.
The meaning of the data 0CEH (11001110B) to set the mode is, from the highest
bits, 11 (two stop bits) 00 (no parity) 11 (eight data bits) 10 (asynchronous
mode). The LSI chip 8251 has many communication functions, but in this
case, data is transferred with a method of communicating called asynchronous
communication.
This value 0CEH signifies that two bits are used as stop bits, a parity
bit is not used, eight bits are sent as serial data, and it is asynchronous
communication.
(17) 0C58-0C59 OUT (21 H),A
Output the contents of register A (the value to set the mode) to the control
word register of the 8251 (I/O port 21 H).
(18) 0C5A-0C5 B LD A, 11 H
The contents of register A are set to the numerical value 11 H. The value
to set the command word is 11H. 11H means that bit 4 and bit 0 are 1. Bit
4 indicates error reset for the 8251 , and bit 0 indicates the transmission
capability status.
(19) 0C5C-005D OUT (21 H),A
Output the contents of register A (the value to set the command) to the
control word register of the 8251 (I/O port 21 H).
(20) 0C5E-0C60 CALL L0C7C (TMLOP2)
Calls location 0C7C (TMLOP2). TMLOP2 is a time delay subroutine, and calling
this routine records the space feeder time period indicating the beginning
of the recording in the approximately three seconds before return is made.
(21) 0C7C PUSH DE
Transfer the contents of the DE regfsters (the 16-bit data value obtained
by combining the contents of register D and register E) to the stack. This
is done in order to preserve the contents of the DE registers on the stack,
since register D and register E are used in the time delay subroutine.
(22) 0C7D PUSH HL
Transfer the contents of the HL registers to the stack. This step, like
step 21 , preserves the register contents so they will not be lost.
(23) 0C7E-0C7F LD E,6
Set the contents of register E to 6. The amount of time spent in the time
delay is determined by the contents of register E.
(24) 0C80-0C81 JR L0C6D(TMLOOP)
Jump (relative jump) from location 0C82 to the place return was made before
byte 0EBH. In other words, this is a jump to location 0C6D (TMLOOP).
(25) 0C6D-0C6F LD HL,O
Set the contents of the HL registers to 0000.
(26) 0C70 DEC L
Subtract 1 from the contents of register L. When 1 is subtracted from a
one-byte value of 0, the result is OFFH (representation of 255 in decimal).
(27) 0C71 -0C72 JR NZ,L0C70 (TM LOP1 )
Jump to location 0C70 (TMLOP1 ) when the contents of register L are not
zero .
Return is again made to TMLOP1 , and through DEC L the contents of register
L are made one less. In this way, (26) and (27) become a loop. In other
words, the loop will be exited only when register L has been decremented
256 times.
(28) 0C73 DEC H
Subtract 1 from the contents of register H.
(29) 0C74-0C75 JR NZ, L0C70 (TMLOP1 )
A Ioop is made, similar to (27). However, because loop (28), (29) is outside
loop (26), (27), the loops are nested. When register H is decremented 256
times, loop (29) is exited.
(30) 0C76 DEC E
Subtract 1 from the contents of register E.
(31) 0C77-0C78 JR NZ, L0 C70 (TMLOP1)
This is similar to (27) and (29). Here, the three levels of loops -- the
L-register loop, the H-register loop, and the E-register loop -- are executed
to create a time delay.
(32) 0C79 POP HL
Restore the contents of the HL registers that were preserved on the stack.
(33) 0C7A POP DE
Restore the contents of the DE registers that were preserved on the stack.
(34) 0C7B RET
Return to location 0C61. The time delay subroutine ends with this instruction.
(35) 0C61 -0C63 LD A,(LEA66) (PORT30H)
Finally, the contents of location EA66 (PORT30H) in which the data output
to I/O port 30H was stored are stored in register A.
(36) 0C64-0C65 AND 0FBH
The logical product of the contents of register A and the numerical value
0FBH is taken. The effect of this is to set bit 2 to O no matter what the
prior contents of register A may have been. Because bit 2 of I/O port 30H
is used to switch between the space signal and the mark signal, this means
that the data to change the output from the space signal to the mark signal
is now being prepared.
(37) 0C66-0C68 CALL L0C38 (SET30H)
In (36) the data to output the mark signal was stored in register A, and
by calling subroutine SET30H this data is output to I/O port 30H and also
stored in location EA66.
(38) 0C69 PUSH DE
Transfer the contents of the DE registers to the stack.
(39) 0C6A PUSH HL
Transfer the contents of the HL registers to the stack.
(40) 0C6B-0C6C LD E,1
Store 1 in register E. This is the initialization for the time delay, and
exiting from the loop will require about 0.5 seconds, thereby outputting
the mark signal for 0.5 seconds.
(6) Defendants Shuuwa System Trading KK (hereinafter referred to as "defendant
Shuuwa") and Tokyo Sugaki Printing KK (hereinafter referred to as
"defendant Sugaki") are companies engaged in, respectively, the
business of marketing published materials relating to computers and the
business of printing published materials.
Defendant Shuuwa, about June, 1982, converted the object program at issue,
which had been incorporated into the personal computer at issue, directly
into hexadecimal code, reproducing the entire object program at issue,
after which it disassembled and interpreted the object program at issue,
reproducing without permission the entire work at issue. The former act
of reproduction was, therefore, the making of a new reproduction from a
reproduction of the work at issue, and the latter act of reproduction was
the making of a reproduction of the work at issue itself. Defendant Sugaki
printed and reproduced, and defendant Shuuwa distributed, both of the above-mentioned
reproductions in the book described in the appendix.
(7) Accordingly, the plaintiff asks that the defendants be prohibited from
publishing and distributing the book at issue under Article 112(1) of the
Copyright Law, and seeks the abandonment of the book at issue under section
(2) of that Article.
2. Response to Grounds for Claims
(1) The truth of Ground for Claim 1 is admitted.
(2) As for the truth of Ground 2, it is admitted that "Copyright 1979
(c) by Microsoft" appears on the display during program execution,
but we have no knowledge as to the truth of the remainder.
(3) We have no knowledge as to the truth of Ground 3.
(4) We admit the truth of Ground 4.
(5) We deny the truth of Ground 5.
According to Article 2 of the Copyright Law, a copyrightable work is defined
as "a production in which thoughts or sentiments are expressed in
a creative way and which falls within the literary, scientific, artistic
or musical domain." According to the copyright law, the reason for
protecting works is to protect personal profit.
However, the work at issue here is an operating system (basic software),
and operating systems have the purpose of managing data more efficiently
and quickly and can therefore be regarded as scientific theories. 1 Thoughts and sentiments are completely excluded;
pure logic is sought after. In this regard, application programs and game
programs, which are expressions of thoughts and sentiments in line with
the creator's objective, are completely different.
Because it naturally follows that the work at issue is something to which
the laws of science and technology apply and in which the element of personal
rights can be ignored, it is not protected under copyright law.
(6) As for the truth of Ground 6, we admit the business of the defendants,
that defendant Shuuwa converted the object program at issue directly into
hexadecimal code, disassembled and interpreted the object program at issue,
and published and distributed the book at issue, and that defendant Sugaki
printed the book at issue, and deny the truth of the remainder.
The defendant Shuuwa's acts of interpreting the disassembled listing, attaching
labels and comments, and giving a description of each column of the source
listing in the book at issue constitute presenting the results of its study
of the operating system of the personal computer at issue, and those acts
should be regarded as independent creative activity, and not the reproducing
of the work at issue.
Over 200,000 units of the personal computer at issue have been sold, and
it is necessary that users understand the structure of the computer and,
more particularly, understand the substance of its operating system, which
is the work at issue, in order to effectively use the personal computer
at issue, but since neither the plaintiff nor NEC have made this information
public and users have only been able to make partial analyses of it, defendant
Shuuwa presented the book at issue in the stead of the plaintiff and NEC
as a general explanation of the operating system for the users of the personal
computer at issue, and the acts of the defendants were right and proper.
III)EVIDENCE (Omitted)
1. There is no dispute between the parties about the truth of Ground
for Claim 1 .
2. The process of creating the work at issue, the rights attached, etc.,
will now be examined.
If the [evidence omitted] is generalized, the following facts are evident,
with no contrary evidence.
The work at issue was developed and produced by the plaintiff at the request
of NEC. Supervision of its development was primarily carried out by the
plaintiff's president, William H. Gates, and other engineers of the plaintiff,
and about eight months were required for completion. Subsequently, the
work at issue was delivered to NEC on about August 3, 1979, and NEC reproduced
it in ROM and marketed it as incorporated into the personal computer at
issue, although it has never been publicly marketed or distributed in the
United States. Furthermore, an indication to the effect that the copyright
owner of the work at issue is the plaintiff was programmed to appear on
the display during execution of the personal computer at issue.
We make the above findings of fact.
In light of the above facts, the work at issue (whether or not it is protected
by copyright law will be discussed later) was created on the plaintiff's
initiative by persons engaged in the plaintiff's business and as part of
their work and can be said to have been made public under the name of the
plaintiff, and therefore the copyright should be said to belong to the
plaintiff.
Furthermore, the work at issue has never been distributed in the United
States, but was reproduced and distributed within Japan through NEC, and
because we can say that this is a work to which Japan has the obligation
to grant protection under the Universal Copyright Convention, it should
be found to have copyright protection under Article 6(2) and (3) of the
Copyright Law.
3. Next we will look at the contents of the work at issue.
From the [omitted evidence], the following facts are found regarding
the contents of the work at issue.
(1) The work at issue is the source program for the BASIO interpreter used
on the NEC PC-8001 , and is written in symbolic language (assembly language).
The actual form of expression of the work at issue is as described in the
B column of pages 1 to 250 of the program listing which was created by
disassembling (which means converting the object program back into an assembly
language program, which is a source program), using a disassembling program,
the object program which is recorded in the ROM of the personal computer
at issue.
(2) Moreover, the purpose of this program is to interpret any commands
or programs in the BASIC language that are input into the personal computer
at issue, which is a small-scale computer system made by NEC using the
Z-80 microprocessor made by the American company Zilog, and to convert
as written instructions and other information to operate the microprocessor.
In other words, when an application program written in the BASIC language
is input into the personal computer, we can say that the work at issue
is the means to interpret and execute the program.
(3) In order to execute a program, the following kinds of operational steps
are necessary, and the work at issue was created so that it could execute
these steps without error.
(a) Begin operation when power is turned on.
(b) After beginning operation, initialize the program (initialize each
of the various input and output devices, clear the screen, display the
sign-on message, set up the various temporary storage areas necessary during
execution, etc.).
(c) Whenever a command can be received, display an "OK" message
to give notice of that fact.
(d) If an input line begins with numerals, store the line in memory in
a condensed form called intermediate code (indirect mode). When the input
line does not begin with numerals, interpretation of that line begins immediately,
and the appropriate management modules for the commands and execution instructions
are given control (direct mode).
(e) The necessary operations are taken by the appropriate execution module
for each of the commands and instructions for execution.
(4) Moreover, the work at issue has a total of 229 different routines
(for example, a routine to record on cassette tape a program recorded in
memory and a routine to input a one-line statement) as its structural elements,
and it is designed so the proper routine is chosen and used.
4. Accordingly, we will now consider whether or not the work at issue
having the contents described in the preceding section is protected under
the Copyright Law.
(1) As was found above, the work at issue is the source program for
the BASIC interpreter used on the NEC PC-8001 , and it is expressed in
symbolic language (assembly language), and has the purpose of interpreting
any commands or programs fn the BASIC language that are input into the
personal computer at issue, which is a small-scale computer system made
by NEC using the Z-80 microprocessor made by the American company Zilog,
and converting as written instructions and other information to operate
the microprocessor.
Moreover, the creator uses his originality and ingenuity with regard to
the overall structure of the program, the structure of each routine, and
the combining of the commands and other information at each address, in
order to match the hardware architecture of the personal computer at issue
and to fully utilize its capabilities.
(2) If these points are carefully considered according to all the above
evidence, the commands or statements described in each address from address
1EC0 to 0C66 of the work at issue can be understood to have the meaning
described in Ground for Claim 5(3) and are understood to be a set of commands
to record on cassette tape a program recorded in the computer's internal
memory.
Furthermore, the meaning of the commands or statements described in each
address from address 3CEC to 3D11 of the work at issue is essentially as
follows.
(The address number, assembly language statement, and its substance are
described in that order.)
(1) 3CEC CALL L1 B7E (INPUTL)
Calls the subroutine named INPUTL which begins at location 1B7E. The INPUTL
subroutine performs the action of reading a one-line BASIC program from
the console. When the RETURN key is pressed, it recognizes that this is
one line and records the string of characters in the area from location
EC96, which is labeled as INBUFF, to location ED93.
(2) 3CEF JP C,L3C9F (COMIN2)
If the carry flag is set (C=1 ), jump (conditional jump instruction) to
location 3C9F, which is labeled COMIN2. If the ESCAPE key has been pressed,
the carry flag has been set, but because at that time any input is invalid,
the contents of the input line are not examined, and the state of waiting
for initial input is entered.
(3) 3CF2 RST 10H
This is the same as CALL 0010H. Because the RST command is a one-byte command
and the CALL cornmand is a three-byte command, two bytes of memory are
saved. At location 10, a jump is made to location 4259, which is labeled
CHRGE1 . The operations carried out at that location consist of putting
the ASCII code for the first character of a valid input character string
into register A, and setting the carry flag if the initial character is
a numeral and resetting the flag if it is not.
(4) 3CF3-3CF4 INC A
DEC A
The INC A command adds one to register A and the DEC A command subtracts
one from register A. This operation has no effect on the carry flag and
is used to check whether or not the contents of register A are zero.
(5) 3CF5 JP Z,L3C9F (COMIN2)
If the Z flag is set (the contents of register A are zero), jump to the
address labeled COMIN2 (location 3C9F) and wait for initial input.
(6) 3CF8 PUSH AF
The contents of regfster A and register F are saved on the stack. The information
as to whether or not there is a line number (indirect mode or direct mode)
is in the carry flag of register F, and it is necessary to preserve the
contents of register F.
(7) 3CF9 CALL L44B5 (GETLNO)
Call the subroutine at the address labeled GETLNO (location 44B5). The
GETLNO subroutine performs the action of getting the line number from the
input line. The line number is converted into a numerical value and stored
in the DE register pair, and return is then made.
(8) 3CFC CALL L4082 (SKPSPC)
Call the subroutine at the address labeled SKPSPC (location 4082). The
SKPSPC subroutine performs the action of restoring the space character
code read over by GETLNO in order to detect the end of the line number.
(9) 3CFF LD A,(HL)
One character from the input line in the INBUFF indicated by the HL register
pair is entered in register A.
(10)3D00 CP 20H
The contents of register A are compared with the space character (20H).
If the contents of register A are a space character, the zero flag is set,
and if not, the zero flag is reset.
(11)3D02 CALL Z,L26C7 (lNCHL)
If the zero flag is set, the value of the HL register pair is increased
by one. When a BASIC LIST command (a command to display on the screen a
program written in the BASIC language) is executed, there is at least one
space character immediately following the line number, and since it is
not necessary to include this inevitably present space character in the
intermediate language, one byte is saved by increasing by one the value
of the HL register pair.
(12)3D05 PUSH DE
The contents of the DE register pair (the line number) are saved on the
stack. This is to prevent the contents of the DE register pair from being
destroyed by the next instruction.
(13)3D06 CALL L3E65 (CHGINT)
Call the subroutine at the address labeled CHGINT (location 3E65). This
subroutine converts into intermediate language the input that is recorded
in INBUFF from the character pointed to by the HL register pair to the
end of the line, and records it in the 315-byte area from location EB57,
labeled TEXTBUF, to location EC91. When the conversion is complete, EB56,
which is one byte before the beginning address (location EB57) of TEXTBUF,
is put in the HL register pair and return is made.
(14)3D09 POP DE
Restore the values of the AF register pair (the numerical value of the
line number) from the stack.
(15)3D0A POP AF
Restore the values of the AF register pair (the information as to whether
the line being operated on is in indirect mode or direct mode is in the
carry flag of register F) from the stack.
(16)3D0B LD (LEF8D),HL
LD (SAVETP),HL
Transfer the value of the HL register pair (the address of one byte before
TEXTBUF) to the address labeled SAVETP (location EF8D) and save the value
of the text pointer, the HL register pair.
(17)3D0E CALL LFI74 (HOOK4)
Call the subroutine at the address labeled HOOK4 (location F174). Because
a RETURN command is at this location, return is made without any action
being taken.
(18)3D11 JP NC,L423B (PRACT3)
If the carry flag has been reset (0), go to the address labeled PRACT3
(location 423B). In that case, because the mode is direct with no line
number, the input command is immediately executed by PRACT3.
If the carry flag is set (1), the mode is indirect with a line number,
so go to the next editor section (here the line number and intermediate
code are stored in the BASIC program area) without executing the input
data.
As discussed above, the set of instructions written in the addresses from
address 3CEC to 3D11 can be seen to be routines to determine whether the
mode for the commands and statements input from the keyboard or elsewhere
is indirect or direct, and to then go on to the next step.
(3) According to the facts found above. the work at issue was created,
even down to the program structure, routines, and use and combining of
the subroutines, using a high degree of technical knowledge concerning
programming languages so that commands and programs input into the personal
computer at issue through the BASIC language are executed as written, and
the result desired by the person inputting the command is produced, and
it is clear that the work is the expression of the scientific thoughts
of the program creator and therefore can be regarded as a work within the
scientific domain.2
(4) However, the defendants claim that the work at issue is an operating
system (basic software) and thus is different from application programs
and the like because it does not include the author's thoughts and sentiments
and its only purpose is to manage data efficiently and quickly. and therefore
it does not receive copyright protection. We will examine this point.
Generally with regard to computer programs there is not just one solution
to achieve a particular purpose, but it is possible to choose from a variety
of solutions. Similarly, when the objective is to produce a BASlC interpreter
to put into a personal computer, as in this case, the various problems
in achieving that purpose must be individually and carefully analyzed and
a solution found for each, as was previously examined in detail, and the
program is completed by writing these solutions in assembly language as
a combination of commands and other information. None of these processes
are unique, and not only does each process differ in that it reflects the
creator's personality and thoughts, but there is also value in that individuality.
There is not the least bit of difference regarding this point whether the
program is a game program, an application program, or as in this case an
operating system.
Therefore, there is no validity to the defendants' claim that the work
at issue is not protected under copyright law.
5. We will next examine whether the defendants committed copyright infringement.
(1) There is no dispute between the parties that defendant Shuuwa converted
directly into hexadecimal code the object program at issue that was incorporated
into the personal computer at issue, and then after
disassembling the object program at issue, interpreted the program and
attached labels and comments.
It is clear that the former of these acts of the defendant Shuuwa can be
considered to be the copying of the object program at issue, which is itself
a copy of the work at issue.
We will now consider the latter of these acts of the defendant Shuuwa.
According to [omitted evidence], we find the following facts.
The work at issue (the B-column of each page of Exhibit A-1 ) and the ro-column of each page of the book at issue have external
differences.
For example, if we look at address 0004, JP L003B is written in the work
at issue, while JP WAMCHK;CHECK COLD START OR WARM START is written in
the ro-column of the book at issue, and they
differ in that regard. However, while the former means an unconditional
jump to location 3B (the WARM CHECK subroutine begins at location 003B),
and the latter means an unconditional jump to the address labeled WAMCHK,
the latter is just an explanation in English of the instruction's meaning
and an English abbreviation label indicating the function performed at
the place the jump is made to, and the former and the latter both have
the same meaning.
The other differences in expression between the two texts largely arise
from the difference in explanatory labels.
We find the above facts.
From this, because we can say that both versions are the same program,
the acts of the defendant Shuuwa in disassembling and then interpreting
the object program at issue and attaching labels and comments to the interpreted
version can be considered to be the act of reproducing the work at issue.
Moreover, there is no dispute that defendant Sugaki reproduced and printed
the book at issue, and that the defendant Shuuwa distributed it.
(2) The defendants claim that the defendant Shuuwa's actions in interpreting
the disassembled listing, attaching labels and comments, and giving descriptions
of the items in the source list column of the book at issue should be viewed
as the presenting of the fruits of its research and therefore as independent
creative activity, and that these actions were thus not copyright infringement.
Moreover, they argue that because the defendants' presenting of the book
at issue was for the benefit of the users of the personal computer at issue,
the defendants' actions were fair and just.
However, whether or not something newly created based on a preexisting
work possesses creativity or individuality should have no bearing on whether
or not the copyright in the preexisting work has been infringed. Moreover,
it seems natural that the act of presenting the work at issue, which was
not made public by its author as a source program, against the wishes of
the author cannot be justified simply because it was done for the convenience
of users, and the arguments of the defendants are therefore inapplicable
and cannot be adopted.
6. As discussed above, each of the above-mentioned acts of the defendants
should be considered to be infringements of the copyright at issue belonging
to the plaintiff, and because we can say that the book at issue was created
by the above-mentioned acts of infringement, the plaintiff can properly
demand that the defendants cease publishing and distributing the book at
issue and abandon the book at issue.
Therefore, each of the plaintiff's claims against the defendants is
granted, and with regard to the litigation costs, we rule as was stated
in the Order based on the various provisions of Articles 89 and 93(1) of
the Code of Civil Procedure.
Tokyo District Court, Twenty-ninth Civil Division
Chief Judge Shin Motoki
Judge Toshiaki Iimura
Judge Eiji Tomioka
Appendix: The Work at Issue
Source Program of the Basic Interpreter used on the NEC PC-8001
The listing (page 1) made by disassembling the program recorded in the
NEC PC-8001 personal computer made by Nihon Electric Company is as shown
in Appendix 1 , and the work at issue is B-column of that listing.
The Subject of Suit
Title: PC-8001 BASIC SOURCE PROGRAM LISTINGS
THE WHOLE ANALYSIS OF Ver. 1.0 and 1.1
(Publisher: Shuuwa System Trading K.K.)
The first page of the program listing of the book at issue is as shown
in Appendix 2.