Page:Sony Computer Entertainment, Inc. v. Connectix Corporation.pdf/10

 Sony contends that Connectix’s reverse engineering of the Sony BIOS should be considered unnecessary on the rationale that Connectix’s decision to observe the Sony BIOS in an emulated environment required Connectix to make more intermediate copies of the Sony BIOS than if Connectix had performed a complete disassembly of the program. Under this logic, at least some of the intermediate copies were not necessary within the meaning of Sega. This construction stretches Sega too far. The “necessity” we addressed in Sega was the necessity of the method, i.e., disassembly, not the necessity of the number of times that method was applied. See 977 F.2d at 1524–26. In any event, the interpretation advanced by Sony would be a poor criterion for fair use. Most of the intermediate copies of the Sony BIOS were made by Connectix engineers when they booted up their computers and the Sony BIOS was copied into RAM. But if Connectix engineers had left their computers turned on throughout the period during which they were observing the Sony BIOS in an emulated environment, they would have made far fewer intermediate copies of the Sony BIOS (perhaps as few as one per computer). Even if we were inclined to supervise the engineering solutions of software companies in minute detail, and we are not, our application of the copyright law would not turn on such a distinction. Such a rule could be easily manipulated. More important, the rule urged by Sony would require that a software engineer, faced with two engineering solutions that each require intermediate copying of protected and unprotected material, often follow the least efficient solution. (In cases in which the solution that required the fewest number of intermediate copies was also the most efficient, an engineer would pursue it, presumably, without our urging.) This is precisely the kind of “wasted effort that the proscription against the copyright of ideas and facts … [is] designed to prevent.” Feist Publications, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 354, 111 S.Ct. 1282, 113 L.Ed.2d 358 (1991) (internal quotation marks omitted). Such an approach would erect an artificial hurdle in the way of the public’s access to the ideas contained within copyrighted software programs. These are “aspects that were expressly denied copyright protection by Congress.” Sega, 977 F.2d at 1526 (citing 17 U.S.C. § 102(b)). We decline to erect such a barrier in this case. If Sony wishes to obtain a lawful monopoly on the functional concepts in its software, it must satisfy the more stringent standards of the patent laws. See Bonito Boats, Inc. v. Thunder Craft Boats, Inc., 489 U.S. 141, 160–61, 109 S.Ct. 971, 103 L.Ed.2d 118 (1989); Sega, 977 F.2d at 1526. This Sony has not done. The second statutory factor strongly favors Connectix.
 * 2.Amount and substantiality of the portion used

With respect to the third statutory factor, amount and substantiality of the