I) JUDGMENT SOUGHT BY THE PARTIES

1. Gist of the Petition

1) That the Respondents may not make, sell, or license third parties to make reproductions of any of the programs listed in Parts (2) and (3) of the appended Description.

2) That it be ordered that the possession of the Respondents' programs listed in parts (2) and (3) of the appended Description and hard disks for NEC 9801 personal computers into which they have been incorporated be given up into the custody of the bailiff of the Tokyo District Court.

2. Answer to the Gist of the Petitioner

Same as the Order.

II) ALLEGATIONS OF THE PARTIES

1. Basis for the Petition

1) Protected Rights

(1) The Petitioner K.K. I.C.M. (hereinafter referred to as "Petitioner I.C.M.") is a company established on December 22, 1981 which makes hardware and software related to personal computers, and the Petitioner K.K. A.G. Soft (hereinafter referred to as "Petitioner A.G. Soft") is a company established on April 1 , 1989 which develops software for personal computers.

From among the programs called IBF files, the Petitioners are the copyright holders in 42 programs (the IBF files actually consist of 81 programs, but in this petition, copyright claims were made regarding only 42 of those programs; those 42 programs are hereinafter collectively referred to as the "IBF Files") listed in part (1 ) of the appended Description (the top row is the source code program, and the bottom row is a hexadecimal representation; "IBF" is an abbreviation of "Install Batch File").

The process of creating and selling the IBF files was as follows. Kenji Takarazo, Jun Maeyasu, Masayoshi Shinhari, and Tetsuo Oka, who are not parties to this petition, jointly planned and developed software for application program management for hard disks for the NEC 9801 personal computer, and in October 1988 completed programs called the "EO System" (hereinafter referred to as the "EO System" or "Petitioners' programs") consisting of the MENU.EXE file, the IBF files, the MENU.AZM file, the CONFIG.AZM file, and others. Petitioner I.C.M. incorporated them onto hard disks and sold them to users from November of 1988.

Kenji Takarazo, not a party to this petition, is a section manager in the planning department of Petitioner I.C.M., and Jun Maeyasu, not a party to this petition, is deputy head of the planning department of that Petitioner, and both men, at that Petitioner's initiative, engaged in the planning and development of the above-mentioned programs as their work, and Masayoshi Shinhari, not a party to this petition, after completing the above-mentioned programs in cooperation with these two men, became the representative director of Petitioner A.G. Soft at the same time as that Petitioner was established, and Masao Oka, not a party to this petition, also after completing the above-mentioned programs in cooperation with these two men, became development department manager of that Petitioner, and both of these non-parties to this petition transferred to the Petitioner all of the rights and obligations in their work concerning the EO System. Accordingly, the Petitioners have a joint copyright in the IBF files constituting the EO System.

(2) Overview of the IBF Files

The IBF files, as discussed above, are part of the files constituting the EO System. The EO System operates on the American company Microsoft's MS-DOS, and puts, onto hard disks, files from among publicly available application programs and front processors (hereinafter referred to as "application programs, etc."), calling the above-mentioned files in a menu format and managing them. They are so-called utility programs, and their main characteristics are: (i) files from among publicly available applications programs, etc., can be easily installed onto a hard disk; (ii) files that have been installed can be easily called from a menu format; (iii) management of the files that have been installed can be easily operated by a menu format.

The IBF files consist of 42 files, and these 42 files consist of files for application programs (Ichitaro. IBA and the like have "IBA" extensions) and files for front processors (VJE-beta.IBF and the like have "IBF" extensions) [files for sub-application programs (Ecology.IBS and the like have "IBS" extensions) are included in the above-mentioned 81 programs]. The structure and contents of each of the files are as follows.

(i) ID Line
The ID Line has "*AZ MENU IBF V1" written in it, and checks whether it is the correct installation file.

(ii) Title Line
The Title Line has the program name of the application program, etc., written in it. The contents of this line are compared with the menu, as the program name of the application program, etc. It is entered in 10 full-size letters or less, or 20 half-size letters or less.

(iii) Device Line
The Device Line indicates the device driver. It has the same meaning as the line beginning with "DEVICE=" of the CONFIG.SYS file of MS-DOS. The device drivers that can be indicated here are of character type only. By adding a half-size "!" or "?" character to the beginning of that line, it is possible to refer to the contents of the CONFIG.SYS in the application program, etc., being installed. In other words, when "!" is added to the beginning, if the device line beginning with the same line of characters as the line of characters from the next letter after the "!" in that line to the letter immediately before the carriage return exists in the CONFIG.SYS file in the application program, etc., being installed, then that parameter will be used. If there is no Device Line beginning with that same line of characters, or if there is no CONFIG.SYS, that line is created without any parameter. When "?" is added at the beginning, if the device line beginning with the same line of characters as the line of characters from the next letter after the "?" in that line to the letter immediately before the carriage return exists in the CONFIG.SYS file in the application program, etc., being installed, then that parameter will be used. If there is no line beginning with that same line of characters, or if there is no CONFIG.SYS, that line will not be created. In writing "DEVICE=", one blank space is always inserted immediately before and after the "=", but in comparing with the contents of CONFIG.SYS, it is considered the same whether or not there is a blank immediately before or after the "=".

(iv) Punctuation Mark Line 1
A half size "*" is written. It cannot be omitted.

(v) Command Line
This line has written into it the sequence for starting the application program and corresponds to the "AUTOEXEC.BAT" of MS-DOS. The Command Line is kept in the CONFIG.AZM file, and is executed when the application program is started. If "!" or "?" is added to the beginning of a line, the function of each symbol is the same as that in the Device Line. In files for front processors, the Command Line is omitted.

(vi) Punctuation Mark Line 2
A half size "*" is written. It cannot be omitted.

(vii) Installation Message Line
Before the installation operation is begun, instructs the operator to insert the floppy disk containing the application program, etc., being installed.

(viii) installation Sequence Line
The installation sequence is written in batch file format. After "%1" and "%2", the driver name and the subdirectory name for the sender and recipient, respectively, are entered. In the case of front-end processor dictionaries only, because this must normally be in a root directory, a "\" mark is added immediately after "%2".

(ix) End Mark Line
Half size "**" is written. It cannot be omitted.

(3) The Respondents' Acts of Copyright Infringement in this Case

(i) The Respondent City Soft K.K. created the programs described in parts (2) and (3) of the appended Description (hereinafter referred to as "Respondents' programs") and gave the reproduction rights thereof to Respondent Mets K.K., and that Respondent incorporated the Respondents' programs onto floppy disks from April 1989, selling them under the product names "MET'S Filedriver" and "MET'S File-driver 2".

(ii) The Respondents' programs are functionally the same as the EO System, and their operation is also very similar to that of the EO System. In other words, the file composition and structure of the Respondents' programs are largely the same as that of the EO System, and in particular, the Respondents' IBF files cannot be created without having sufficient knowledge about the various application programs, etc., and the HCA files among the files constituting the Respondents' programs (hereinafter referred to as the "HCA files") have largely a one-to-one correspondence with the IBF files. Accordingly, it must be said that the Respondent City Soft K.K. reproduced the IBF files created by the Petitioners in creating the HCA files.

2) Necessity of Protection

The Petitioners gave notice to the Respondents from about May 1989 that they were infringing the copyright in the Petitioners' IBF files, and demanded that sales of "MET'S Filedriver" and "MET'S Filedriver 2" be stopped, but the Respondents ignored this, and not only continued sales, but they tried to expand their sales. Because the state of program development continually makes rapid advances, and the life span of various kinds of products is short, the Petitioners will suffer irreparable damage.

2. Response and Arguments of the Petitioners to the Basis for the Petition

1) We have no knowledge of the facts of parts 1 (1) and 1 (2) of the Basis for the Petition. We admit the facts of part 1(3)(i). We deny the facts of part 1(3)(ii). We deny part2.

2) With regard to whether the IBF files are programs

(1) The IBF files are, essentially, lmitated to two things: (i) the description of the file name of the application programs, etc., selected as the object to be installed onto the hard disk, and (ii) the description of a reference of the installation operation in simple terms. There is no combination of various instructions, no logical thinking is required at all, and no discovery of a particular algorithm is required. The personality of the creator and the like are not reflected therein, and as a result, no differences arise due to the personality of the creator. Instead, the terms used in the IBF files are simple Japanese and English words, and assembler language or C Language is not used. From the simplicity, etc., of these kind of contents, the IBF files cannot be called program files, but should be called data files, which are fundamentally different.

(2) A program is instructions to a computer, and has some sort of subjective existence in relation to the computer. However, the statements in the top row of the appended Description (1) are not source code (source program) at all, and as is clear from the fact that they cannot be compiled, etc., they do not cause a computer to function, they are nothing more than the description of data to be used by other programs, and they are just text files that are essentially batch files. The IBF files, which are that kind of text file, cannot in any case subjectively obtain a specific result by causing a computer to function, and because they are passive and are operated on by other programs, they should be called data files, and cannot be called programs.

3) With regard to the originality¹ of the IBF files

(1) The descriptions in the IBF files are extremely simple, and are nothing more than program names and file names that are given by the creator of the application programs, etc., and lists of English terms that are similar to MS-DOS commands, and there is no originality in the form of expression. Specifically, it is nothing more than: in the Title Line, the program name given by the creator of the application programs, etc., is entered; in the Device Line, the "DEVICE=" term for installing the Japanese front processor used by MS-DOS is used; in the Command Line, the file name given to the automatic execution batch file by the creator of the application programs, etc., is entered; and in the Installation Sequence Line, the "COPY", "%1", and "%2" commands generally used by users of MS-DOS are used; "%","*", and "?" are included in ASCII code charts and "*" and "?" are used as wild cards in MS-DOS; and there is no need to even discuss whether the ID Line and Installation Message Line have no originality; so we cannot find that there is overall originality in the descriptions in the IBF files.

(2) When creating a program to do installation onto hard disks, the files from within an application program, etc., that must be installed are determined by the composition of the program, and the fundamental point of file selection --what files are selected -- is inherent in the application program, etc., and will be apparent to the user, so that whoever does this must select the same files, leaving nothing more than a small amount of trivial file selection concerning only files which have no importance to the object being installed. Even in that case, considering the volume of the files, the convenience of batch file creation, the file names, etc., if they are selected by persons with about the same level of knowledge and experience, they will be the same in most cases. Accordingly, with respect to the EO System as well, even if the Petitioners, who are nothing more than one user of the application programs, etc., selected files, there is no originality in the idea of that selection.

(3) The "flow of processing" and "method of solution" cited by the Petitioners are not only not protected under copyright law, there is nothing in the IBF files which corresponds to that kind of "flow of processing" or "method of solution."

4) With regard to the similarities of the IBF files and the HCA files

(1) The HCA files are made up of a total of 58 files, but for 15 of those files there are no corresponding files in the IBF files, and another 15 have radically different methods of selecting the files of the application programs, etc., and finally, the remaining 28 are all those for which the file selection method would be the same no matter who did it. Moreover, installing on a hard disk is not difficult, and if a user understands the "COPY" command from among the MS-DOS commands, he or she does not have depend on an installation program like that in this case, but can select and install onto a hard disk the files he or she requires by referring to the manual.

(2) While the Petitioners' programs are designed so that, after reading the IBF files line by line and converting them to MS-DOS batch files commands using the MS-DOS COMMAND.COM, it then executes the MS-DOS batch file, the Respondents' programs are designed so that, after reading the HCA files, without creating a new batch file, the file contents are recognized by the main program and the desired processing is directly executed, and the program's basic structure and method of utilizing files are, therefore, definitely different.

(3) The "MET'S HCA Ver 1" entry corresponding to the ID Line of the IBF files is an identifying character string to distinguish HCA files from other files, and the HCA files cannot be utilized without this character string; the ";" code is used to divide the HCA files into three blocks, and does not correspond to the punctuation mark "*" of the IBF files; the "COPY" code, as stated in part (2) above, differs in processing design from the IBF files; and all of these are descriptions unique to the HCA files. Moreover, the Title Line, Device Line, Command Line, and Installation Sequence Line of the HCA files are well known and universally used descriptions. Accordingly, the Respondents could not have created the HCA files by revising the IBF files with an editor. Moreover, if the volume of the EO System and the Respondents' programs are compared, the total volume of the EO System is 409,540 bytes, and of that, the volume of the IBF files is 7,418 bytes, and the total volume of the Respondents' programs is 83,772 bytes, and of that, the volume of the portion of the HCA files which the Petitioners claim is similar to the IBF files is 7,418 bytes, and while the Petitioners created the MENU.EXE file, the main program, in assembly language, the Respondents created the MFD.EXE file, the main program, in the C language, and therefore, the creation time was short when compared with the Petitioners.

(4) Because if one wants to look at the program products of other companies, one has to at least run it and display it on the screen, it cannot be said that the Petitioners created the HCA files by revising the IBF files with an editor simply because the "IBA" code in the dump listing of "THEGRAPH.HCA" in the HCA files which indicates the directory of the IBF files existed as so-called "garbage." Moreover, there was only one of the 58 HCA files which contained garbage related to the IBF files, and in fact, that "garbage" was not the contents of the IBF files, but was a directory, and therefore, it cannot be said that the Respondents revised the Petitioners' programs with an editor.

3. Petitioners' Response to the Respondents' Arguments

1) With regard to whether the IBF files are programs

(1) Programs are expressed as sets of instructions, and because what type of instructions they are, or what programming language they are in, is irrelevant, high-level languages, assembly languages, simple languages, languages whose functions are defined by operating systems, and languages whose functions and installation method are defined by a program -- whichever of these languages something is written in does not affect whether it is a program or not.

(2) From the function and operational sequence of the IBF files, it is clear that they satisfy the requirements for a program under the copyright law. When a program is related to other files, and the actual process functions by running a series of files, one or several of those files can also be programs. In other words, if, as with the IBF files, a particular function that is used is arranged in a routine in one file within a program, and a code is set up to transfer to that routine, that code can be used in that program, or in conjunction with it, as a command word to carry out that routine, and there can be programs which carry out a process by writing a combination of a number of that kind of command words.

(3) As programs, there are various levels -- basic input and output systems, operating systems, application programs, etc. -- and, for example, in the case of application programs, they are written based on commands provided by the operating system, and they may carry out processing, sending to the operating system a processed result in a single lump, or may leave to the operating system the processing of each step. Similarly, it is possible to establish commands that are valid for only a certain program, writing the processing of these commands as routines, and by writing a combination of these commands, making a program that forms a sequence causing a computer to function. With the IBF files, as above, commands which have a valid processing function only in the EO System have been established, and they are a combination of these commands, and it is clear that they are programs.

2) With regard to the originality of the IBF files

(1) The IBF files are not just data files, but have meaning with each line in those files being a group, and have, as a whole, originality as a program. Originality of the IBF files cannot be denied by saying that the writing of each of the commands is simple. Compared with other utility programs of the same type, or compared with cases where written in MS-DOS, a fair number of differences in the writing come out. In other words, the originality of the program developers is demonstrated. In short, there is certainly not just one "flow of processing" and "method of solution" for programs for installing on hard disks files from application programs, etc., and there are also great differences in the actual expression of the programs in which the "flow of processing" and "method of solution" is expressed.

(2) One of the steps in the creation of the IBF files is the process of selecting the files of the application programs, etc., which are being installed, and this selection also constitutes originality of the IBF files.

3) With regard to the similarities of the IBF files and the HCA files

(1) The expression and functions of the IBF files and the HCA files correspond exactly. Specifically, in both the "AZ MENU IBF V1" and the "MET'S HCA Ver 1," the ID Lines are the entry of an identifying character string indicating the program that is the main program; the Title Lines are the entry of an identifying character string indicating which file corresponds to the application program, etc.; the Punctuation Mark Lines are, both "*" and ";" punctuation codes; the Command Lines are both descriptions concerning the starting and executing of application programs; the Installation Message Lines are both instruction messages displayed on the screen; the Installation Sequence Lines are the entry of the instructions and sequence for installing the desired files from the application programs, etc.; the End Mark Lines are, both "**", and ";", ending codes; it is clear that the "flow of processing," "method of solution," and the expression thereof of the programs are extremely similar; and the expression and functions of the IBF files and the HCA files are in perfect correspondence.

(2) In "THEGRAPH.HCA" in the HCA files, there is "IBA" code indicating the directory of the IBA files in garbage in the dump listing. Moreover, in the HCA files, there are typographical errors, unnecessary descriptions, and other unnatural things that are the same as in the IBF files, that would not be there if there had been no access. These indicate that the Respondents read the IBF files into main memory, re-edited them using an editor or the like, and created "THEGRAPH.HCA".

1. According to Exhibits A-1 , -2, -5, -12, and -35, we find that Pe titioner I.C.M. is a company established on December 22, 1981 wit h the purpose of making, selling, etc., of electrical equipment (microcomputers) and parts and that Petitioner A.G. Soft is a comp any established on April 1, 1989 with the purpose of developing, selling, etc., computer software; that Petitioner I.C.M. incorpor ated on a hard disk the programs called "EO System," comprised of the MENU.EXE file, the IBF files, the MENU.AZM file, the CONFIG. AZM file, etc., and is selling them; that the EO System is a hard disk automatic installation program operating in the MS-DOS envi ronment for the NEC 9801 personal computer; that the IBF files ar e made up of 42 files, and those files can be divided into 28 fil es for application programs (including those having "IBA" extensi ons) and 14 files for front processors (including those having "IBF" extensions); and that the descriptions of each of the IBF files are as described in the dump listing in the appended Descripti on (1).

2. With regard to the IBF files

1) According to Exhibits A-5, -7, and -8, we find that the IBF files, together with the MENU.EXE file, the MENU.AZM file, the CONFIG.AZM file, etc., comprise the EO System that causes the NEC 9801 personal computer to function; that the EO System is a program that automatically installs publicly available application programs, etc., into hard disks, calls those files using a menu format, and does management; that in the EO System the MENU.EXE file is the program that performs the most important function, and the IBF files enter the instructions and information for the MENU.EXE file to Install on a hard disk the files of the application programs, etc.

2) Next, according to Exhibits A-5, -7, -8, -11 , -36, and B-42, the IBF files' sequence, function of each line, and contents of the entry of each line are as follows.

(1) ID Line
The ID Line is the line which indicates that it is an appropriate IBF file, and it is always entered as the first line. The MENU.EXE file reads the ID Line of the indicated IBF file from the beginning, and if the entry on that line is "*AZ MENU IBF V1 " in half-size characters, the entry is determined to be correct and it continues on, but if the entry is different, it is treated as a format error.

(2) Title Line
When being read, the Title Line is transferred into the menu system management information, and becomes the line that is the title of the file being read, which is always entered as the second line of the IBF file. Ordinarily, the program name of the application program, etc., is used. After loading the Title Line, the MENU.EXE file reads its first character, and if it is not a half-size "*" character, it is a grammar error, but if it is a half size "*" character, the Title Line which follows is read, and if the number of characters exceeds a certain number, it is a grammar error, and if within a certain number, it proceeds to the next step.

(3) Device Line
The Device Line is the line which provides the information defining the device driver, and the contents that are entered are the same as the line in CONFIG.SYS in MS-DOS for booting the system that begins with "DEVICE=". However, when entering "DEVICE=", one blank space is always put immediately before and after the "=" By adding a half-size "!" or "?" character to the beginning of that line, one can cause reference to be made to the CONFIG.SYS file in the application program, etc., being installed. After loading the Device Line, the MENU.EXE file reads one character from its beginning, and if it is a half-size "!" or "?" character, the Device Line beginning with the character string that is the same as the character string from after the "!" or "?" to immediately prior to the carriage return is checked to see whether it is in the CONFIG.SYS file of the application program, etc., being installed, and if it is, the process of transferring that parameter, etc., is carried out.

(4) Punctuation Mark Line 1
The Punctuation Mark Line I performs the function of separating the Device Line and the Command Line, and a single half-size "*" character is always entered. The MENU.EXE file reads the Punctuation Mark Line 1, and if it is not a half-size "*" character, proceeds to error processing, but if it is a half-size "*" character, it continues on.

(5) Command Line
The Command Line is a line which causes the automatic execution batch file in the application program being installed to be created in the CONFIG.AZM file, and enters a code corresponding to the automatic execution batch file in the application program being installed in the same manner as in the case of the AUTOEXEC.BAT of MS-DOS. Moreover, by adding a half-size "!" or "?" character to the beginning of that line, one can cause reference to be made to the AUTOEXEC.BAT file in the application program being installed. After loading one line, the MENU.EXE file reads one character from its beginning, and if it is a half-size "!" or "?" character, the MENU.EXE file checks whether the Command Line beginning with the character string that is the same as the character string from after the "!" or "?" to immediately prior to the carriage return is in the AUTOEXEC.BAT file of the application program being installed, and if it is, the process of transferring that parameter, etc., is carried out.

(6) Punctuation Mark Line 2
The Punctuation Mark Line 2 indicates the end of the Command Line, and a single half-size "*" character is always entered. The MENU. EXE file reads the Punctuation Mark Line 2, and if it is not a half size "*" character, proceeds to error processing, but if it is a half size "*" character, it continues on.

(7) Installation Message Line
The Installation Message Line is the entry of a message instructing the operator to insert the floppy disk containing the application program, etc., being installed before the installation operation is begun, and at the beginning of that line, a half-size "*" character is always entered, and a message is entered from the second character directing that the floppy disk be inserted which contains the application program, etc., being installed. The MENU.EXE file reads the beginning character of the Installation Message Line, and if it is not a half-size "*" character, format error processing is done, but if it is a half-size "*" character the second character is read, and if it is not also a half-size "*" character, reads the remainder, and displays it as a message on the operation screen before executing the next installation step.

(8) Installation Sequence Line
The Installation Sequence Line is a line in which is entered the sequence, when installing, for transferring the indicated file from the application program, etc., to the subdirectory created on the hard disk, and it is entered in the same manner as a batch file using the COPY command of MS-DOS. Moreover, by making the first four characters of that line "Copy", not "COPY" or "copy", when the indicated file is not in the application program, etc., being installed, processing can be continued without an error being made. The MENU.EXE file loads the installation sequence line by line, and if the first four letters are "COPY" or "copy", the indicated file is transferred to the hard disk from the floppy disk from which the transfer is being made, and if the file is not there, it becomes an installation error, but if they are "Copy", it checks whether the indicated file is on the floppy disk from which the transfer is being made, and if it is there, transfers it to the hard disk, and even if the file is not there, it does not become an error.

(9) End Mark Line
The End Mark Line declares the end of the installation sequence, and half-size "**" characters are always entered. The MENU.EXE file reads one character from its beginning and if it is a half size "*" character, and if the second character is also a half-size "*" character, processing ends.

3) Each of the above lines constitutes a format having a certain order.

According to the above findings of fact, the MENU.EXE file, which carries out the main functions of the EO System, is a program written with ordinary instructions for the purpose of causing installation to be made to a computer in the operation of automatically installing a file from among application programs, etc., onto a hard disk, and by contrast, the IBF files provide to the MENU.EXE file the instructions and information for installing each application program, etc., on the basis of the programs which include the MENU.EXE file at their center, and through the above-mentioned instructions and information of the IBF files, the NEC 9801 personal computer is caused to function by the MENU.EXE files, and can be considered to have been designed to allow files from among the application programs, etc., to be automatically installed onto a hard disk.

3. With regard to the originality of the IBF files

According to the findings of fact of section 2.2 above, even i f the IBF files were programs under the Copyright Law, we find tha t the IBF files do not have originality, as discussed below.

1) According to the findings of fact of section 2.2 above, because the structure of the IBF files can be interpreted as being format, and grammar which consists of the characters and other codes and system that are the means of expressing a program (Copyright Law art. 10(3)(1)), it can only be said that protection under the Copyright Law does not extend to things in the structure itself of the IBF files, and because, according to Exhibit A-8, we find that the selection of the format of the IBF files is defined by the MENU.EXE file, with no freedom of selection, it must be said that it cannot be thought that there is originality in the expression of the IBF files arising from the selection of format.

2) Accordingly, we next look at the contents of the expression at the IBF files, and consider whether or not there is originality in that.

(1) Because, according to the findings of fact of section 2.2 above, in the IBF files the expression of the ID Line, the expression of the Punctuation Mark Lines, the expression of the arrangement of the Punctuation Mark Lines before and after the Command Lines (when there are no Command Lines, there is no expression of the arrangement before and after the above-mentioned, but the Punctuation Mark Lines still remain in that position), the expression of the End Mark Line, the expression of the arrangement of the End Mark Line as the last line, and the expression of the entry of "*" at the beginning of the ID Line, the Title Line, and the Installation Message Line, are all defined by the MENU.EXE file, and there is no freedom for selection in that expression, the above expression cannot be a source of originality in the IBF files.

(2) Moreover, because, according to the findings of fact of section 2.2 above, the Title Line, Command Line, and Device Line are determined by the application program, etc., being installed, and there is no freedom of selection in that expression, we cannot find that there is originality in the IBF files arising from that expression. Furthermore, because what is selected as the application program, etc., being installed, and what files are selected from it, are nothing more than simple ideas, originality cannot arise from this selection.

(3) In addition, according to the findings of fact of section 2.2 above, when multiple files are installed, the sequence of the Installation Sequence Line in the structure of the IBF files is not set, but because the sequence is determined by the MENU.EXE file for the rest of the structure, there is no option for freedom of selection in that sequence. Moreover, according to the findings of fact of section 2.2 above, although the sequence of the Installation Sequence Line has freedom of selection, the selection itself is simply an idea, and although some differences in expression come out in the sequence in which the selected things are entered, the method of expression is largely the same as the method of expression used in MS-DOS batch files, and indeed, the sequence is functionally irrelevant, and because, according to Exhibit A-9, the sequence of the Installation Sequence Line largely follows the order in which the files appear in the application program, etc., being installed, we cannot find that there is originality in that expression.

(4) Finally, according to the findings of fact of section 2.2 above, the Installation Message Line has freedom of selection in the means of expression, but the expression is made following the method of expression generally used, and because the breadth of that selection is very small, we are also unable to find that there is expression in the IBF files arising from that means of expression.

(5) According to the above, the expression in the IBF files is in large part defined by the MENU.EXE file and the application programs, etc., that are being installed and there is no freedom of selection, and where there is freedom of selection, the breadth of selection is very small, and we cannot find that there is originality in that expression arising from that selection, and furthermore, even when the expression of the IBF files is considered as a whole, we cannot find that there is originality in that expression.

3) (1) The Petitioners argue that because the IBF files are not simply data files, each line in those files has meaning as a single lump, and they have originality as a whole, originality cannot be denied by saying that the entry of each command is simple, and compared with other utility programs of the same type, and even compared with when descriptions are made in MS-DOS, significant differences come out, and the originality of the program developers is demonstrated, but the fact that we cannot find originality in the IBF files is as indicated above, and even considering the points in the above arguments, we cannot find that that conclusion should be changed, and accordingly, these arguments of the Petitioners cannot be accepted.

(2) Moreover, the Petitioners argue that there is as one of the steps of creating the IBF files the process of selecting the files of the application program, etc., being installed, and that this selection also constitutes originality in the IBF files, but the selection itself of files of the application program, etc., being installed is no more than a simple idea, and the fact that we cannot find originality in the expression of the IBF files in which that selection was made is as indicated above, and accordingly, the above arguments of the Petitioners are not acceptable.

4. Therefore, because the petition in this case does not constitute credible evidence with regard to a protected right, it shall be denied, and with regard to the bearing of the fees of this petiti on, we apply Article 89 of the Code of Civil Procedure, and we de cide as set forth in the Order.

February 27, 1991
Tokyo District Court, Twenty-Ninth Civil Division
Judge: Mitsuru Shishido