Vol 7 No 1 - Roger Williams University School of Law

occurred was legitimate because it merely facilitated the copyingof the unprotected (non-copyright) function or idea of thesoftware.277 Interestingly, the existence of a patent would havemade things more difficult for Connectix.278 However, the courtclearly stated that intermediate copying is allowable where it isused to determine function that can facilitate the making oftransformative (better or extended) products.279Connectix had developed software that emulated the SonyPlayStation on a personal computer.280 In other words, theirVirtual Game Station allowed consumers to play Sony games ontheir personal computer and not just on the Sony PlayStationconsole. This allowed portability that the court also seemed tosupport in its discussion of transformative use: “The productcreates a new platform, the personal computer on whichconsumers can play games designed for Sony PlayStation. Thisinnovation affords opportunities for game play in newenvironments . . . .”281 The court was not concerned with thenumber of intermediate copies that had been made nor that theend product (even though containing a different source code, yetthe same function) competed with the Sony PlayStation.282In contrast, Reimerdes, which was brought pursuant to theDMCA for offering, providing or otherwise trafficking in a deviceof developing the final product which itself may not, as in the Connectix case, be a copy.277. Id. at 602-03. The judge remarked:[I]n the case of computer programs the idea/expression distinction posesdistinct ‘unique problems’ because computer programs are in essence‘utilitarian articles - articles that accomplish tasks. As such they containmany logical, structural and visual display elements that are dictated by thefunction to be performed, by considerations of efficiency, or by externalfactors such as compatibility requirements and industry demands’ . . . the fairuse doctrine preserves public access to the ideas and functional elementsembedded in copyrighted computer software programs.Id. at 603.278. See Sony, 203 F.3d at 596; Maureen A. O’Rourke, Toward a Doctrine of FairUse in Patent Law, 100 Colum. L. Rev. 1177 (2000); Richard H. Stern, Scope ofProtection Problems with Patents and Copyrights on Methods of Doing Business, 10Fordham Intell. Prop. Media & Ent. L.J. 105 (1999). It may be necessary in the not toodistant future to state the rationale more simply in terms of allowing copying on thebasis of increasing portability and diversity.279. See Sony, 203 F.3d at 602-03.280. Id. at 599.281. Id. at 606.282. Id. at 604 (this might be termed “horizontal” interoperability); see O’Rourke,supra note 281, at 1213, 1223.