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Sony slaps patent suit on PlayStation emulator developer

Connectix jubilation premature

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Top marks to Sony lawyers for one thing at least: these guys really know how to spot an opportunity and mine it. Last week, the US Ninth Circuit Court of Appeal reversed a judgement made by the San Francisco District Court which banned the sale of emulator developer Connectix's Virtual Game Station (VGS) PlayStation-on-a-Mac software. The ban followed claims by Sony that Connectix had infringed its copyrights in the development of VGS. However, the Appeals Court ruled that the copies Connectix made of the PlayStation BIOS while VGS was being written were legal under fair use law. The shipping version of VGS contains no Sony-owned code, something that Sony has never contested. The basis for the Appeals Court ruling, made by Circuit Judge William C Canby, Jr., was that the PlayStation BIOS contains elements protected by copyright law and other parts that are not. So while the actual sequences of instructions are Sony's copyright -- ie. how tasks are achieved -- many of ideas and concepts embodied within it -- the tasks themselves -- are not so protected by copyright law. That, said Canby, is the province of patent law. However, since Sony sought the preliminary injunction using copyright law, patent infringement issues could not be taken into consideration. So Canby lifted the preliminary injunction. Following Canby's lead, Sony lawyers have now charged Connectix with patent infringement in an attempt to get VGS banned again. The Mac developer has already begun selling VGS from its Web site, and last week bullishly announced it would soon begin shipping a Windows version. Maybe Connectix should have read the ruling a little more carefully before blowing the victory trumpets. In fact, this is just smart lawyering from the word go. Sony reckoned it could win using the copyright argument alone, so why use the patent argument too? This way, it still has a weapon with which to fight Connectix, despite losing the appeal. The patent argument is weaker than the copyright consideration, but it still brings with it the possibility of a fresh preliminary injunction blocking the sale of VGS -- which is really all Sony cares about. And Sony still has its allegations that VGS encourages piracy to call upon should this latest challenge fail too. ®

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