stored on prerecorded media, as well the making of second generation copies where the original
transmission was through a pay television service (such as HBO, Showtime or the like).
(13) Other Cases Filed Under the Anti-Circumvention
Provisions
Several other anti-circumvention cases have been filed under the DMCA:(i) Sony Computer Entertainment, Inc. v. Connectix,
Inc.
On Jan. 27, 1999, Sony Computer Entertainment, Inc. and its U.S. subsidiary Sony
Computer Entertainment America, manufacturers and distributors of the Sony PlayStation, filed
suit against Connectix, Inc., a company that had developed a software emulator called the
“Virtual Game Station” that would enable video games written for the PlayStation to run on
Apple computers. In order to create the emulator, Connectix disassembled and reverse
engineered the PlayStation’s operating system. The plaintiff’s complaint included claims for
copyright infringement, trademark dilution, and circumvention of technological protection
measures.^1021
The circumvention claim was based on the fact that the PlayStation and its video games
each contain embedded technological measures to prevent counterfeit games from running on the
PlayStation, and the alleged fact that Connectix’s emulator software did not contain such
technological measures, thus enabling counterfeit games to run on it. The plaintiffs contended
that omission of the PlayStation’s technological measures constituted an unlawful circumvention
of those measures. In its opposition to the plaintiffs’ motion for a temporary restraining order,
Connectix asserted that its emulator did in fact implement the PlayStation’s technological
measures and could not run counterfeit games. Thus, the alleged factual predicate on which the
plaintiffs based their circumvention claim was apparently missing. On Feb. 4, 1999, the district
court judge denied the plaintiffs’ motion for a temporary restraining order.^1022
Even if Connectix’s emulator software did not contain the technological measures of the
PlayStation, the plaintiffs’ circumvention claim appears to be flawed for several reasons. First,
the DMCA’s prohibition under Section 1201(a)(1) on circumvention of technological measures
controlling access was not yet in effect at the time the complaint was filed, and the DMCA
contains no prohibition on the act of circumventing copy controls. Second, Connectix’s
emulator did not actively “circumvent” anything in the games it could run. At most, it simply
allegedly operated regardless of whether the video games contained the authentication signals
required by the PlayStation (i.e., it allegedly ignored the authentication signal of the
PlayStation). But Section 1201(c)(3) provides that Section 1201 does not require a computing
product to “provide for a response to any particular technological measure,” so long as the
(^1021) See Band & Issihiki, supra note 974, at 8.
(^1022) Id. at 8-9. On appeal, the Ninth Circuit ultimately held that Connectix’s reverse engineering of the Sony
Playstation fell within the fair use doctrine. See Sony Computer Entertainment, Inc. v. Connectix Corp., 203
F.3d 596 (9th Cir. 2000). The Ninth Circuit’s opinion did not address the DMCA issues.