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PlayStation-on-Mac developer gets sales ban lifted

But it's not the victory Connectix thinks it is

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Connectix has been granted the right to resume shipments of its Mac-based PlayStation emulator, Virtual Game Station (VGS), more than a year after Sony launched its copyright and intellectual property infringement case against the developer. The judgement, made yesterday by the US Ninth Circuit Court of Appeals also paves the way for the release for the Windows version of the emulator, which was in development throughout 1999. The Appeals Court ruling reverses a preliminary injunction granted to Sony last April. That decision was centred on the District Court's acceptance of Sony's claim that Connectix used copies of the PlayStation BIOS in its VGS development programme. Yesterday's judgement, however, claimed that Connectix engineers, having actually gone out and bought a PlayStation, had certain rights to access the BIOS under fair use law, and that since the final version of VGS doesn't contain the PlayStation BIOS, VGS doesn't infringe Sony's copyrights. You'll note that the ruling doesn't specifically legitimise what Connectix did. It simply states that the company's fair use of the PlayStation BIOS in the development of a non-infringing version of VGS. "Other intermediate copies of the Sony BIOS made by Connectix, if they infringed Sony's copyright, do not justify injunctive relief," says the ruling (our italics). In other words, the reversal was granted on the basis that Sony should not have been granted the preliminary injunction, not that Connectix's use of the PlayStation BIOS isn't an infringement of Sony's intellectual property. It's this use of the BIOS in the VGS development process that differentiates Sony vs. Connectix from the parallel copyright infringement case, Sony vs. Bleem!. Bleem!'s PlayStation-on-a-PC was hit by an identical suit from Sony, but as a purely reverse-engineered product (as opposed to Connectix's sort-of-reverse-engineered software) Sony was unable to gain a ban on sales of Bleem!'s software. Those "intermediate copies" will surely form the basis of Sony's case against Connectix when it comes to trial, and while yesterday's judgement simply allows the developer to begin selling VGS again, it does strengthen its defence against Sony. It's also worth noting, that the Appeals Court isn't too happy with Sony, practically accusing the Japanese giant of using copyright law to maintain its absolute control of PlayStation market. That should please Bleem!, which has already gained the right to countersue Sony for attempting to compete unfairly through its allegedly hostile legal action. ®

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