Page:Sega Enterprises v. Accolade.pdf/10

 Uniden Corp., 623 F.Supp. 1485 (D.Minn.1985). In each case, the court based its determination regarding infringement solely on the degree of similarity between the allegedly infringed work and the defendant’s final product. A close reading of those cases, however, reveals that in none of them was the legality of the intermediate copying at issue. Sega cites an equal number of cases involving intermediate copying of copyrighted computer code to support its assertion that such copying is prohibited. Atari Games Corp. v. Nintendo of America, Inc., 18 U.S.P.Q.2d 1935, 1991 WL 57304 (N.D.Cal.1991); SAS Institute, Inc. v. S & H Computer Systems, Inc., 605 F.Supp. 416 (M.D.Tenn.1985); S & H Computer Systems, Inc. v. SAS Institute, Inc., 568 F.Supp. 416 (M.D.Tenn.1983); Hubco Data Products v. Management Assistance, Inc., 219 U.S.P.Q. 450 (D.Idaho 1983). Again, however, it appears that the question of the lawfulness of intermediate copying was not raised in any of those cases.

In summary, the question whether intermediate copying of computer object code infringes the exclusive rights granted to the copyright owner in section 106 of the Copyright Act is a question of first impression. In light of the unambiguous language of the Act, we decline to depart from the rule set forth in Walker for copyrighted works generally. Accordingly, we hold that intermediate copying of computer object code may infringe the exclusive rights granted to the copyrighted owner in section 106 of the Copyright Act regardless of whether the end product of the copying also infringes those rights. If intermediate copying is permissible under the Act, authority for such copying must be found in one of the statutory provisions to which the rights granted in section 106 are subject.

Accolade next contends that disassembly of computer object code does not violate the Copyright Act because it is necessary in order to gain access to the ideas and functional concepts embodied in the code, which are not protected by copyright. 17 U.S.C. § 102(b). Because humans cannot comprehend object code, it reasons disassembly of a commercially available computer program into human-readable form should not be considered an infringement of the owner’s copyright. Insofar as Accolade suggests that disassembly of object code is lawful per se, it seeks to overthrow settled law.

Accolade’s argument regarding access to ideas is, in essence, an argument that object code is not eligible for the full range of copyright protection. Although some scholarly authority supports that view, we have previously rejected it based on the language and legislative history of the Copyright Act. Johnson Controls, Inc. v. Phoenix Control Sys., Inc., 886 F.2d 1173, 1175 (9th Cir.1989); Apple Computer, Inc. v Formula Int’l Inc., 126 F.2d 521, 524–25 (9th Cir.1984); see also Apple Computer, Inc. v. Franklin Computer Corp., 714 F.2d 1240, 1246–48 (3d Cir.1983), ''cert. dismissed'', 464 U.S. 1033, 104 S.Ct. 690, 79 L.Ed.2d 158 (1984).

As recommended by the National Commission on New Technological Uses of Copyrighted Works (CONTU), the 1980 amendments to the Copyright Act unambiguously extended copyright protection to computer programs. Pub.L.96-517, sec. 10, 94 Stat. 3028 (1980) (codified at 17 U.S.C. §§ 101, 117); see National Commission of New Technological Uses of Copyrighted Works, Final Report 1 (1979) [CONTU Report]. “[T]he Act makes no distinction between the copyrightability of those programs which directly interact with the computer user and those which simply manage the computer system.” Formula, 725 F.2d at 525. Nor does the Act require that a work be directly accessible to humans in order to be eligible for copyright protection. Rather, it extends protection to all original works “which … can be perceived, reproduced, of otherwise